2009 Legislative Review by HC120607055424

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									Mike Menahan
Deputy County Attorney
Lewis and Clark County
Courthouse – 228 Broadway
Helena, MT 59601
(406) 447-8221

                        CRIMINAL LAW AND PROCEDURE

                     LEGISLATIVE REVIEW – 2009 SESSION


HB 55          (Chapter No. 373, Effective 4/28/2009)

        An act requiring Youth Court to impose geographical restrictions on juvenile
sexual offenders. Amends Sections 41-5-215 and 41-5-1513, MCA, to require youth
court to provide notice to the superintendent of a school district for level 3 juvenile
offenders and to impose upon the youth those restrictions required for adult offenders by
46-18-255(2), MCA, “unless the youth is approved by the youth court or the department
for placement in a home, program, or facility for delinquent youth.”

HB 101         (Chapter No. 26, Effective 3/20/2009)

         An act to extend deadlines related to wage withholding in cases of theft.
When an employee is discharged upon an allegation of theft of employer’s property or
funds connected to employer’s work, the employer may withhold employee’s final
paycheck in an amount sufficient to cover the value. HB 101 amends Section 39-3-25,
MCA, to extend the deadline when wages are due and payable (when no charges are
filed) from15 to 30 days of the filing of the report with a local law enforcement agency.

HB 122         (Chapter No. 64, Effective 10/1/2009)

         An act to revise Montana’s false claims act. Amends Section 17-8-402, MCA,
et seq. to increase the civil penalty (not less than $5,000 and not more than $10,000 plus
three times the amount of damages the government sustains, along with expenses, costs
and attorney fees) for submitting a fraudulent demand for money, property, or services
made to an employee, officer, or agent of a governmental entity…if any portion of the
money, property or services requested or demanded issued from, or was provided by a
governmental entity. HB 122 extends the statute of limitations for false claims: a civil
action must be brought 6 years after the violation occurred or 3 years after the date when
it should have been discovered (whichever is longer) but no more than 10 years after the
violation was committed.

HB 149         (Chapter 66, Effective 3/25/2009)




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         An act to revise restitution and probationary supervision fees. Amends
Section 46-18-241, MCA, to ensure that the duty to pay full restitution under a sentence
remains with the offender “whether or not the offender is under state supervision.”
Payment of restitution is a condition of probation or parole for every offender under state
supervision. The bill also requires offenders to pay the cost of supervising the payment
of restitution by paying an amount equal to 10% of the restitution ordered to be paid.
House Bill 149 also amends Section 46-23-1031, MCA, to clarify that every probationer,
parolee, or person committed to the department of corrections who is supervised by the
department shall pay a supervisory fee of $120 to $360 a year.

HB 205         (Chapter No. 51, Effective 10/1/2009)

        An act to revise petitions for postconviction relief. Amends Section 46-21-201,
MCA, providing that notice of a petition may be sent to the attorney general and county
attorney, rather than served upon them. House Bill 205 further specifies that the attorney
general shall determine whether the attorney general or county attorney will respond to
the petition.

HB 222         (Chapter 253, Effective 4/17/2009)

        An act to revoke hunting and fishing privileges until fines are paid. Amends
Section 87-1-102, MCA. It requires that a person convicted of a fish and game violation
whose privileges to hunt, fish, or trap have been revoked is not eligible to purchase a
license to hunt, fish, or trap until the person has complied with all terms of the court
sentence.

HB 223         (Chapter No. 121, Effective 10/1/2009)

        An act to revise laws governing revocation of hunting, fishing, and trapping
privileges. Amends Sections 45-6-201, 45-6-203 and 87-1-102, MCA, to require the
forfeiture of a person’s hunting, fishing, and trapping privileges when the person is
convicted of criminal mischief or criminal trespass “involving property owned or
administered by the department of fish, wildlife, and parks.

HB 228         (Chapter No. 332, Effective 4/27/2009)

        An act to preserve and clarify laws relating to self-defense and the right to
bear arms. Amends the justifiable use of force statutes to provide that a person,
lawfully in a place and threatened with bodily injury or loss of life, has no duty to retreat
from a threat or summon law enforcement prior to using force. A person may carry a
weapon openly and “communicate to another person the fact that the person has a
weapon,” particularly if the person reasonably believes he is threatened with bodily harm,
in which case the person “may warn or threaten the use of force, including deadly force,
against the aggressor, including drawing or presenting a weapon.” The bill removes the
requirement in Section 45-3-103, MCA, (Use of force in defense of an occupied
structure) that the unlawful entry must be made in a “violent, riotous, or tumultuous



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manner.” The bill also clarifies that in a criminal trial in which “the defendant has
offerered evidence of justifiable use of force, the state has the burden of proving beyond a
reasonable doubt that the defendant’s actions were not justified.”

HB 293         (Chapter No. 75, Effective 10/1/2009)

        An act to allow law enforcement certification for certain former military
personnel. Revises Section 7-32-303, MCA, by providing for recognition of courses
taught by a federal, state, or US military law enforcement agency that is reviewed and
approved by the Montana public safety officer standards and training council as
equivalent with current training in Montana. Prior employment of a member of military
law enforcement may be considered to satisfy the basic educational requirements
established by the POST council.

HB 296         (Chapter No. 32, Effective 3/20/2009)

       An act to include tribal fish and game wardens as ex officio wardens when a
cooperative agreement exists. Amends Section 87-1-503, MCA, to include as ex officio
wardens tribal fish and game wardens, as authorized by cooperative agreement.
Currently, only the Confederated Salish & Kootenai tribe has a cooperative agreement
with the State.

HB 298         (Chapter No. 76, Effective 3/25/2009)

        An act to limit non-deferment of judgments to commercial vehicles. Amends
Section 61-11-101, MCA, to clarify that judges have the authority to defer traffic
violations except for holders of commercial driver’s licenses.

HB 308         (Chapter No. 128, Effective 4/1/2009)

        An act to allow donation of food as a method of serving a sentence of
community service. This bill amends Section 46-18-201, MCA, to allow a sentencing
court to order a defendant to make a donation of food to a food bank program to satisfy
all or part of a fine.

HB 407         (Chapter No. 198, Effective 10/1/2009)

        An act to protect children from exploitation and abuse. Amends Section 45-5-
626, MCA, (sexual abuse of children) to include those who knowingly travel within, from
or to Montana with the intention of meeting a child under 16 years of age or a person the
offender believes to be a child under 16 years of age in order to engage in sexual conduct,
actual, or simulated. The amendment includes those who knowingly coerce, entice,
persuade, arrange for, or facilitate a child under16 years of age… to travel within, from,
or to Montana with the intention of engaging in sexual conduct.

HB 531         (Chapter No. 447, Effective 5/5/2009)



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        An act to prohibit use of technology for issuing citations not witnessed by an
officer. Revises Sections 61-8-203 and 61-8-206, MCA, to provide that an “automated
enforcement system designed to detect traffic violations that is attached to a traffic
control device may not be used to enforce traffic laws.” This provision “does not apply
to automated enforcement systems attached to traffic control devices at railroad grade
crossings.”

HB 534         (Chapter No. 214, Effective 10/1/2009)

        An act to require electronic recordings of custodial interrogations. House
Bill 534 requires law enforcement to record electronically custodial interrogations in
felony cases. “Custodial interrogation” means an interview conducted by a law
enforcement officer “in a place of detention for the purpose of investigating a felony.”
This applies to juvenile offenses that would be a felony if committed by an adult. A
place of detention means a jail, police or sheriff’s station, correctional facility and
detention center. Interviews must be electronically recorded, by use of audio and/or
video equipment. There are several exceptions to the requirement: voluntary statements,
exigent circumstances, a defendant’s statements made during a custodial interrogation
conducted by law enforcement officers in another state, spontaneous statements,
equipment failure, etc…

HB 574         (Chapter No. 263, Effective 10/1/2009)

        An act to revise Montana’s burglary law. Amends the definition of burglary
and aggravated burglary found at Section 45-6-204, MCA. A person commits the offense
of burglary if the person knowingly enters or remains unlawfully in an occupied structure
and (a) the person has the purpose to commit an offense in the occupied structure; or (b)
the person knowingly or purposely commits any other offense within that structure.

HB 628         (Chapter No. 348, Effective 10/1/2009)

       Statute of limitations for careless driving resulting in death and reckless
driving resulting in death. Amends Section 45-1-205, MCA to provide that a
prosecution for careless (and reckless) driving resulting in death may be commenced
within 3 years after the offense is committed.

SB 35          (Chapter No. 53, Effective 10/1/2009)

        An act requiring the committing jurisdiction to forward physical and mental
health information to prison. Amends Section 46-18-112, MCA, to require the district
court to “forward to the sheriff all information contained in the presentence investigation
report concerning the physical and mental health of the defendant.” Section 46-19-101,
MCA, was amended to include a similar requirement upon a sheriff delivering an inmate
to a “place of confinement, commitment, or execution.” All information in the
possession of the sheriff regarding the physical and mental health of the defendant,



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including health information contained in the pre-sentence investigation report, shall
accompany the inmate.

SB 40          (Chapter No. 80, Effective 3/25/2009)

       An act to clarify friend of respondent in involuntary commitment laws.
Amends Section 53-21-122, MCA, to give the district court the authority to change the
designation of the friend of the respondent at the request of the respondent or if the court
determines that a conflict of interest exists between the respondent and the friend.
Additionally, the district court is no longer required to appoint a friend of the respondent
but may do so if the court finds that an appropriate person is willing and able to perform
the function.

SB 91          (Chapter No. 37, Effective 10/1/2009)

       An act to revise waiver of attorney by youth. Amends Section 41-5-333, MCA,
adding this sentence: “A youth must be represented by counsel at a probable cause
hearing unless the right to counsel is waived after consultation with an attorney prior to
the hearing.”

SB 96          (Chapter No. 268, Effective 4/17/2009)

        An act to revise mental illness evaluations in the criminal justice system.
Amends Sections 46-14-311 and 46-18-111, MCA. When a defendant claims (at the
omnibus hearing or at the time of a change of plea) that he was suffering from a mental
disease or defect or developmental disability, the sentencing court shall consider any
relevant evidence at trial and shall “also consider the results of the pre-sentence
investigation.” When a defendant raises a mental disease or defect defense, the PSI
“must include a mental evaluation” by a person appointed or approved by the DPHHS. If
the evaluator concludes the person did suffer from a mental disease…”the evaluation
must also include a recommendation as to the care, custody, and treatment needs of the
defendant.”

SB 103         (Chapter No. 46, Effective 3/20/2009)

       An act to revise sentencing restrictions for sexual offenders. Amends Section
46-18-207, MCA, to ensure that every defendant convicted of a sexual offense (not just
those who receive a suspended sentence) shall abide by the standard conditions of
probation established by the department of corrections.

SB 157         (Chapter No. 42, Effective 10/1/2009)

       An act to restrict who may object to the use of audio-video hearings for
mental health proceedings. Amends Section 53-21-140, MCA. Two-way electronic
audio-video communication (e.g. Vision Net) may not be used: in an initial appearance if




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the professional person objects; and, in a hearing unless the respondent, the respondent’s
attorney, or the professional person objects.

SB 171         (Chapter No. 466, Effective 5/6/2009)

       Criminal damage to rental property. Establishes a crime of damage to rental
property when a tenant purposely or knowingly destroys, defaces, damages, impairs, or
removes any part of the premises with a value of at least $1,000 over the amount over any
damage deposit. A misdemeanor, violation of this section is punishable by a fine not to
exceed $1,000 or imprisonment in the county jail for a term not to exceed 6 months.

SB 214         (Chapter No. 400, Effective 4/28/2009)

        An act to increase penalties for theft of a commonly domesticated hoofed
animal. Allows the forfeiture of property (money, equipment, vehicles, boats, airplanes)
used to facilitate theft of cattle, horses, sheep, goats and pigs and for illegal branding or
obscuring a brand. A person convicted of theft under this subsection shall be fined an
amount not less than $5,000 or more than $50,000 or be imprisoned in the state prison for
a term not to exceed 10 years. If the court defers sentencing, the court shall order the
defendant to perform 416 hours of community service during a 1-year period, in the
offender’s county of residence.

SB 250         (Chapter No. 177, Effective 7/1/2009)

        An act to strengthen protection against counterfeit marks or logos. This bill
establishes the offense of trademark counterfeiting; provides restitution for those harmed
by the offense; and allows for the seizure of counterfeit goods. The counterfeiter must
employ a counterfeit mark by applying or using it in connection with goods, services,
labels, patches, fabric, boxes, containers, packaging etc… The mark must be identical or
substantially indistinguishable from a mark that is in use and is registered (in any state or
the US patent and trademark office) and must be likely to deceive or cause confusion or
mistake to the consumer. If the offense involves less than 100 items bearing one or more
counterfeit marks or the total retail value is less than $1,000, the person convicted shall
be fined an amount not to exceed $1,000 or be imprisoned in the county jail for a term
not to exceed 6 months, or both. If the offense involves 100 items or more and the retail
value exceeds $1,000 or more, the person shall be fined no more than $10,000 or be
imprisoned in the state prison for a term not to exceed 1 year, or both.

SB 263         (Chapter 467, Effective 7/1/2009)

       An act to revise public defender laws. Amends Section 46-8-113, MCA. As a
condition of a sentence imposed under Title 46, the court “shall require a convicted
defendant to pay the costs of counsel assigned to represent the defendant.” Defendants
will now pay $150 in misdemeanor and $500 in felony cases. “If the criminal proceeding
includes a jury trial, counsel assigned by the office of state public defender shall file with
the court a statement of the hours spent on the case and the costs and expenses incurred.”



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The court shall order the defendant to pay the costs and expenses but may waive them,
along with the cost of counsel, if the defendant is unable to pay. The bill also amends
Section 47-1-111, MCA, to give the court authority to question the “propriety of an
assignment of counsel” by the office of public defender and to deny an assignment.

SB 331         (Chapter No. 98, Effective 10/1/2009)

        An act to revise laws relating to the criminal use of official position. Amends
Section 45-7-103, MCA by deleting the title, “compensation for past official behavior”
and substituting “criminal use of office or position.” Applies to “an elected official or
other public servant” who knowingly solicits, accepts or agrees to accept a pecuniary
benefit “accruing to the person, the person’s political campaign, or the person’s political
party” for giving a decision, opinion, recommendation or vote favorable to another, for
exercising a discretion in another’s favor, or for violating the person’s duty. A person
who knowingly offers, confers, or agrees to confer the prohibited compensation in this
section may also be prosecuted for an offense under this section. A violation is a
misdemeanor punishable by 6 months in jail and/or a $500 fine.

SB 341         (Chapter No. 180, Effective 7/1/2009)

        An act to revise the costs of criminal proceedings. Recognizing that the
majority of the cost of criminal proceedings are borne by the taxpaying public, the
Legislature amended Section 46-18-232, MCA, to give courts authority to require a
defendant in felony or misdemeanor cases to pay “costs of prosecution, and the cost of
pretrial, probation, or community service supervision” as part of the defendant’s
sentence. The defendant must have the ability to pay these costs, which are limited to
$100 for felony cases and $50 for misdemeanors.

SB 442         (Chapter No. 365, Effective 11/1/2009)

         Shaken baby syndrome education program. Under this legislation, the
DPHHS shall develop educational materials on shaken baby syndrome and distribute
them to childbirth educators, pediatric and obstetric physicians, hospitals, child-care
facilities, and groups that offer classes for babysitters.

SB 447         (Chapter No. 221, Effective 10/1/2009)

        An act to clarify preservation of DNA in felony cases. Amends Section 46-21-
111, MCA, by requiring “a law enforcement agency” rather than “the state” to preserve
biological evidence the agency has reason to believe may contain DNA material which
was obtained in connection with a felony for which a conviction was obtained. The
“agency” shall preserve the evidence for a minimum of 3 years after the conviction
becomes final. The agency may dispose of the material before the expiration of the 3
year period if notice is given to the defendant, the defendant’s attorney, and the Montana
chief public defender. The bill also requires the crime lab, upon completion of laboratory




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analysis, to “permanently preserve under laboratory control any remaining biological
evidence collected from items submitted to it.”


SB 476         (Chapter No. 473, Effective 10/1/2009)

        An act to raise the monetary threshold for property crimes. Raises from
$1,000 to $1,500 the monetary threshold for felony prosecutions. It applies to the
following statutes: criminal mischief, arson, desecration of a cemetery, theft, failure to
return rented property, unlawful use of a computer, unauthorized acquisition of food
stamps, Medicaid fraud, issuing a bad check, deceptive practices, forgery, theft of
identity, money laundering, and false claim to a public agency.




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