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Bill Watch, Feb. 14, 2014: Current Criminal Justice Legislation of Note - Criminal Justice News

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Criminal Justice News


Posted on: Feb 18, 2014

The IndyBar Legislative Committee is currently monitoring the following criminal law related legislation. IndyBar members can request that the Legislative Committee track specific legislation by contacting committee chair Mindy Westrick at mindy.westrick@faegrebd.com.

Click here to view the full Bill Watch reports.

HB1006 RECONCILES TECHNICAL AND SUBSTANTIVE CONFLICTS BETWEEN HEA 1006-2013 (THE CRIMINAL CODE REVISION BILL) AND OTHER BILLS CONCERNING CRIMINAL LAW. (STEUERWALD G)
Changes the nomenclature for felonies from "Class" to "Level" for statutes not amended by HEA 1006-2013 and for statutes added to the Indiana Code in the 2013 session. Removes criminal gang activity, criminal gang intimidation, and certain drug offenses from the list of crimes over which a juvenile court does not have jurisdiction. Authorizes pretrial diversion for persons charged with a Level 5 or Level 6 felony. Prohibits a credit restricted felon from obtaining sentence modification. Provides that, not later than 365 days after: (1) a convicted person begins serving the person's sentence; and (2) the court obtains a report from the department of correction concerning the convicted person's conduct while imprisoned; the court may reduce or suspend the person's sentence and impose any sentence the court was authorized to impose at the time of sentencing. Specifies that, if more than 365 days have elapsed since the convicted person began serving the sentence, the court may reduce or suspend the sentence and impose any sentence the court was authorized to impose at the time of sentencing. Limits the filing of subsequent petitions to modify a sentence, and removes the requirement that the court hold a hearing. Requires a court to explain its reasons for imposing a sentence unless the court imposes an advisory sentence. Increases the number of crimes that are nonsuspendible. Makes changes to the penalties for the crimes of dealing in cocaine or a narcotic drug and dealing in methamphetamine. Allows a court to suspend any part of a sentence for a Level 2 felony or a Level 3 felony concerning a controlled substance. Enhances the penalties for certain controlled substance offenses if a person commits an offense: (1) within 250 feet of school property, a public park, a family housing complex, or a child care facility; or (2) in the physical presence of a child less than 18 years of age, knowing that the child was present and might be able to see or hear the offense. Permits the total of all controlled substances sold or possessed in a 30 day period to be used to enhance the penalty for certain controlled substance offenses. Requires a court to sentence a person found to be a habitual offender to an additional fixed term of imprisonment that is between: (1) six years and 20 years, for a person convicted of murder or a Level 1 through Level 4 felony; and (2) two years and six years, for a person convicted of a Level 5 or Level 6 felony. Increases the advisory sentence: (1) from six years to 10 years for a Level 3 felony; (2) from four years to six years for a Level 4 felony; and (3) from two years to three years for a Level 5 felony. Amends credit time provisions by creating a new Class A that provides that a person: (1) who is not a credit restricted felon; and (2) who is imprisoned for a Level 6 felony or a misdemeanor or imprisoned awaiting trial or sentencing for a Level 6 felony or misdemeanor; earns one day of credit time for every day the person is imprisoned or confined awaiting sentencing. Provides that the: (1) Class I through Class IV credit class system applies to a person who commits an offense before July 1, 2014; and (2) Class A through Class D credit class system effective July 1, 2014, applies to a person who commits an offense after June 30, 2014. Provides that educational credit time is deducted from the release date that would otherwise apply to the person. Provides that a person confined on home detention as a condition of probation earns one day of credit time for each day the person is confined on home detention. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

HB1008 PUBLICATION OF LIST OF CRIMINAL OFFENSES. (STEUERWALD G)
Repeals the article listing criminal law statutes for titles outside IC 35, and reorganizes the criminal law statutes into individual sections under a new article. Does not make any substantive change in the law. (The introduced version of this bill was prepared by the code revision commission.)

HB1009 SURVEILLANCE AND PRIVACY. (KOCH E)
Requires a law enforcement officer to obtain a search warrant in order to use an unmanned aerial vehicle, with certain exceptions. Provides that a law enforcement officer may not compel a person to provide a passkey, password, or keycode to any electronic communication service, electronic device, or electronic storage, or any form of stored electronic user data without a valid search warrant issued by a judge. Prohibits a law enforcement officer or law enforcement agency from using a real time tracking instrument that is capable of obtaining geolocation information concerning a cellular device or a device connected to a cellular network unless: (1) the law enforcement officer or law enforcement agency has obtained an order issued by a court based upon a finding of probable cause to use the tracking instrument; or (2) exigent circumstances exist that necessitate using the tracking instrument without first obtaining a court order. Provides that, except for a law enforcement officer or governmental entity who has obtained a search warrant, a person who knowingly or intentionally places a camera or electronic surveillance equipment that records images or data of any kind while unattended on the private property of another person without the consent of the owner or tenant of the private property commits a Class A misdemeanor. Provides immunity from civil and criminal liability for certain entities that provide information pursuant to certain court orders. Provides certain procedures for the issuance of search warrants concerning electronic communication service or remote computing service that affect the law concerning a journalist's privilege against disclosure of an information source. Allows a judge to issue a search warrant or arrest warrant if the judge receives sworn testimony of the same facts required for an affidavit in writing by electronic mail when signed by the affiant. Urges the legislative council to assign to a study committee during the 2014 legislative interim the topic of digital privacy, including: (1) issues related to searches of electronic devices, compelling the disclosure of electronic user data, the collection and use of geolocation information, and the collection and use of biometric information by government agencies; and (2) any other issue concerning digital privacy and related subjects.

HB1014 DISSOLUTION IN CASES OF DOMESTIC VIOLENCE. (KUBACKI R)
Allows a court, in a dissolution of marriage case, to: (1) conduct a final hearing; or (2) enter a summary dissolution decree; at any time after a petition or counter petition for dissolution has been filed if a party to the action has been convicted of a crime of domestic violence against the other party or against any child living in the same household as a party. (Current law prohibits a court from conducting a final hearing or entering a summary dissolution decree earlier than 60 days after a petition or counter petition has been filed.) Requires the court to: (1) conduct the final hearing; or (2) enter a summary dissolution; as soon as practicable. Allows a family law arbitrator to enter a summary dissolution decree at any time after a petition for dissolution has been filed if a party to the action has been convicted of a crime of domestic violence against the other party or against any child living in the same household as a party. (Current law prohibits a family law arbitrator from entering a summary dissolution decree earlier than 60 days after a petition has been filed.)

HB1108 MEMBERSHIP ON COMMUNITY CORRECTIONS BOARDS. (HARMAN T)
Provides that a county with a population of less than 50,000 may reduce the number of members of community corrections advisory boards to thirteen.

HB1110 DEPARTMENT OF CHILD SERVICES. (MAHAN K)
Makes various changes to provisions concerning child welfare, including: (1) the contents of notices sent out by the director of the department of natural resources to individuals who are delinquent in paying child support; (2) the definition of "relative" for purposes of provisions concerning residential child care, collaborative care, and the placement of children who are children in need of services; (3) the issuance and implementation of income withholding orders; (4) information reviewed by the residential placement committee; (5) the disclosure of reports and other materials concerning investigations and reports of children who are or are alleged to be children in need of services and child fatalities or near fatalities; and (6) the placement of children who are or alleged to be children in need of services. Makes a technical correction. Repeals a provision concerning foster care licenses.

HB1155 EXPUNGEMENT. (TURNER P)
Relocates and restates certain provisions dealing with the expungement of arrest records, and deletes inconsistent language. (Under current law, there are two inconsistent procedures for expunging arrest records.) Specifies where a petition for expungement must be filed, and removes the prohibition against a waiver or reduction of the filing fee for an indigent person. Grants a defense attorney and a probation department access to expunged records if authorized by court order. Allows a court to accept filing of a subsequent petition for expungement that includes convictions not named in the original petition under certain circumstances. Provides that a court must find by a preponderance of the evidence instead of by clear and convincing evidence that all the requirements of expungement have been met to order a person's conviction records marked as expunged. Prohibits a person from waiving the right to expungement as part of a plea agreement. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

HB1384 DOWNLOADING OF CELLULAR TELEPHONE INFORMATION BY POLICE. (SPEEDY M)
Prohibits a police officer from extracting or otherwise downloading information from a telecommunications device without the owner's consent for a violation of the law concerning typing, transmitting, or reading a text message while operating a motor vehicle unless: (1) the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime; (2) the information is extracted or otherwise downloaded under a valid search warrant; or (3) otherwise authorized by law. Provides that if a law enforcement officer detains a person because the law enforcement officer believes the person has committed an infraction or ordinance violation, the law enforcement officer may not, without the person's consent, extract or otherwise download information from a cellular telephone or another wireless or cellular communications device possessed by the person at the time the person is detained unless: (1) the law enforcement officer has probable cause to believe that the cellular telephone or other wireless or cellular communications device has been used in the commission of a crime; (2) the information is extracted or otherwise downloaded under a valid search warrant; or (3) otherwise authorized by law.

SB3 JUDICIAL OFFICERS. (STEELE B)
Makes battery: (1) a Level 6 felony instead of a Class B misdemeanor if the offense is committed against certain judicial officers while the judicial officers are engaged in the judicial officers' official duties; and (2) a Level 5 felony instead of a Class B misdemeanor if the offense results in bodily injury to certain judicial officers while the judicial officers are engaged in the judicial officers' official duties or the person who committed the offense placed certain infected bodily fluids or wastes on certain judicial officers. Provides that certain judicial officers: (1) may possess and use a firearm in the same locations that a law enforcement officer who is authorized to carry a firearm may possess a firearm while the law enforcement officer is engaged in the execution of the law enforcement officer's official duties; and (2) may not be prohibited from possessing a firearm on land or in buildings and other structures owned or leased by the state or any agency of state government or a political subdivision. Specifies that a judicial officer who possesses and uses a firearm has the same civil and criminal immunities and defenses that a law enforcement officer has when the law enforcement officer: (1) possesses and uses a firearm; and (2) is engaged in the execution of the law enforcement officer's official duties.

SB19 ACCESS TO JUVENILE COURT RECORDS. (STEELE B)
Provides that the law making all records of a juvenile court confidential does not apply to records involving proceedings that pertain to: (1) paternity issues; (2) custody issues; (3) parenting time issues; or (4) child support issues; concerning a child born to parents who are not married to each other. Provides that the law that specifies which persons may have access to juvenile court records without a court order does not apply to records involving proceedings that pertain to: (1) paternity issues; (2) custody issues; (3) parenting time issues; or (4) child support issues; concerning a child born to parents who are not married to each other. (The introduced version of this bill was prepared by the commission on courts.)

SB28 ALCOHOL CONSUMPTION BY A MINOR. (MILLER P) Makes it a Class B misdemeanor for a person to recklessly, knowingly, or intentionally: (1) rent property; or (2) provide or arrange for the use of property; for the purpose of allowing or enabling a minor to consume an alcoholic beverage on the property. Makes this offense a: (1) Class A misdemeanor if the person has a prior unrelated conviction; and (2) Level 6 felony if the consumption, ingestion, or use of the alcoholic beverage is the proximate cause of the serious bodily injury or death of any person. Provides immunity from civil liability on a postsecondary educational institution or its agents under certain conditions.

SB33 POSSESSION OF GLASS CONTAINERS ON THE WABASH RIVER. (WATERMAN J)
Makes possessing or using glass containers within the normal high watermarks of the Wabash River a Class C infraction. Specifies certain exceptions.

SB43 CHILD SEDUCTION. (YODER C)
Makes it child seduction, a Level 6 felony, for a law enforcement officer who is at least five years older than a child who is: (1) at least 16 years of age; and (2) less than 18 years of age; to fondle or touch the child with the intent to arouse or satisfy the sexual desires of either the child or the law enforcement officer, if the law enforcement officer's contact with the child occurred in the course of the officer's official duties. Makes it child seduction, a Level 5 felony, if the law enforcement officer engages in sexual intercourse or other sexual conduct with the child. Reconciles technical and substantive conflicts between HEA 1006-2013 (the 2013 criminal code revision bill) and other bills concerning criminal law.

SB52 CRIMINAL PENALTIES AND DNR. (STEELE B)
Makes the penalty for violating certain statutes in IC 14 (natural and cultural resources) an infraction instead of a misdemeanor. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

SB63 NONSUPPORT OF A CHILD. (YOUNG R)
Changes the penalty enhancement for nonsupport of a child from a Level 6 felony to a Level 5 felony if the person has a previous conviction for the offense. Changes the procedure for a court to lower the penalty for a person convicted of nonsupport of a child. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

SB64 DOWNLOADING OF CELL PHONE INFORMATION BY POLICE. (WALTZ B)
Prohibits a police officer from extracting or otherwise downloading information from a telecommunications device without the owner's consent for a violation of the law concerning typing, transmitting, or reading a text message while operating a motor vehicle unless: (1) the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime; (2) the information is extracted or otherwise downloaded under a valid search warrant; or (3) otherwise authorized by law. Provides that if a law enforcement officer detains a person because the law enforcement officer believes the person has committed an infraction or ordinance violation, the law enforcement officer may not, without the person's consent, extract or otherwise download information from a cellular telephone or another wireless or cellular communications device possessed by the person at the time the person is detained unless: (1) the law enforcement officer has probable cause to believe that the cellular telephone or other wireless or cellular communications device has been used in the commission of a crime; (2) the information is extracted or otherwise downloaded under a valid search warrant; or (3) otherwise authorized by law.

SB134 FRAUDULENT LIENS AND ENCUMBRANCES. (WYSS T)
Makes it a Level 6 felony for a person to file a false lien or a false encumbrance against another person. Allows a court to order certain actions if a lien or encumbrance is fraudulent.

SB138 VICTIM ADVOCATES IN CIVIL PROCEEDINGS. (BECKER V)
Removes restrictions on grants from the victim services division of the Indiana criminal justice institute for certain entities to enter into a contract with the domestic violence prevention and treatment council. Provides that a court may allow a victim advocate to attend a civil proceeding and confer with a victim as necessary. Specifies that a victim advocate is not considered to be practicing law when performing certain services.

SB169 PROVIDING FIREARMS TO A FELON. (YOUNG R)
Makes it a Level 5 felony for a person to provide an individual with a firearm if the person knows that the individual: (1) is legally ineligible from possessing a firearm; or (2) intends to use the firearm to commit a crime. Increases the penalty to a Level 2 felony if the person uses the firearm to commit murder. Makes theft of a firearm a felony. Permits the state to seek a sentencing enhancement of from ten to 20 years if a person uses a firearm to commit: (1) a felony against the person that results in death or serious bodily injury; (2) kidnapping; or (3) criminal confinement as a Level 2 or Level 3 felony.

SB187 ATTORNEY GENERAL ON CRIMINAL LAW STUDY COMMITTEE. (GLICK S)
Makes the attorney general a member of the criminal law and sentencing policy study committee.

SB223 SENIOR AND SPECIAL PROSECUTORS. (HOLDMAN T)
Repeals and recodifies provisions concerning the appointment of senior prosecuting attorneys, special prosecutors, and special deputy prosecuting attorneys. Provides that a person may be appointed as a senior prosecuting attorney if the person was employed for at least eight years as a: (1) prosecuting attorney; (2) chief deputy prosecuting attorney; (3) deputy prosecuting attorney; or (4) deputy prosecuting attorney employed full time to perform certain duties related to child support provisions. Requires a person who files an affidavit to be considered for appointment as a senior prosecuting attorney to file a request to withdraw from consideration when the person is no longer willing to serve as a senior prosecuting attorney. Requires the prosecuting attorneys council to maintain and publish a list of persons who are eligible to be appointed as senior prosecuting attorneys. Allows a senior prosecuting attorney to be appointed as a special prosecutor in a county in which the senior prosecuting attorney previously served if the appointing court finds that the appointment would not create the appearance of impropriety. Removes provisions that limit the number of days a senior prosecuting attorney may be compensated during a calendar year. Requires a special prosecutor to file a progress report with the appointing court at least one time every six months. Makes conforming amendments.

SB227 ALCOHOL AND MEDICAL EMERGENCIES; CRIME STUDIES. (MERRITT J)
Provides that a person is immune from arrest or prosecution for certain alcohol offenses if the arrest or prosecution is due to the person: (1) reporting a medical emergency; (2) being the victim of a sex offense; or (3) witnessing and reporting what the person believes to be a crime. (Current law provides immunity from arrest or prosecution only if the person reports a medical emergency that is due to alcohol consumption.) Establishes a mitigating circumstance for the sentencing of a person convicted of a controlled substance offense if the person's arrest or prosecution was facilitated in part because the person requested emergency medical assistance for an individual in need of medical assistance due to the use of alcohol or a controlled substance. Permits a court to defer entering a judgment of conviction for an individual arrested for an alcohol offense if the individual was arrested after a report that the person needed medical assistance due to the use of alcohol if certain conditions are met. Permits an emergency medical responder, a firefighter, or a law enforcement officer to administer an overdose prevention drug to a person suffering from an overdose. Allows certain health care providers to prescribe, and a pharmacist to dispense, an overdose prevention drug for an emergency medical responder, a law enforcement agency, or a fire department. Requires the commission on improving the status of children in Indiana to study and evaluate: (1) crimes of sexual violence against children; and (2) the impact of social media, wireless communications, digital media, and new technology on crimes against children. Requires the state department of health or the office of women's health to conduct a study to determine the number of persons who are the victims of crimes of domestic or sexual violence, the reasons why these crimes are underreported, best practices to improve reporting, and the most effective means to connect victims with appropriate treatment services. Establishes a framework for the study, and permits the department of health or the office of women's health to contract with a third party to conduct the study.

SB235 MENTAL HEALTH PILOT PROJECT. (YOUNG R)
Requires community corrections programs to use evidence based services, programs, and practices that reduce the risk for recidivism. Permits the community corrections board to coordinate or operate certain programs. Establishes standards for the award of certain grants by the department of correction, and requires the department of correction to consult with the judicial conference and the division of mental health and addiction before awarding grants. Defines "mental health and addiction forensic treatment services", establishes eligibility and treatment criteria, and creates the mental health and addiction forensic treatment services account to fund mental health and addiction forensic treatment services. Requires the judicial conference to discuss with the department of correction and the division of mental health and addiction before awarding financial assistance, and requires any person providing mental health and substance use treatment services be certified by the division of mental health and addiction. Provides that the department of correction may provide financial assistance to community corrections programs from the mental health and addiction forensic treatment services account. Allows for the establishment of a three year pilot project in Marion County to reduce recidivism by providing mental health and forensic treatment services. Extends Supplemental Nutrition Assistance program and Temporary Assistance for Needy Families benefits for individuals participating in the Marion County mental health pilot project. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

SB236 CRIMINAL LAW PROVISIONS OF IC 7.1. (YOUNG R)
Revises numerous provisions of IC 7.1 that deal with criminal liability. Removes the requirement that the driver's license of a minor shall be suspended if the minor commits certain offenses related to the unlawful purchase, use, or consumption of an alcoholic beverage if the offenses do not involve the use of a motor vehicle, and makes certain juvenile offenses infractions. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

SB251 ANIMAL CONTROL AND PROTECTION. (WYSS T)
Provides that a person who recklessly, knowingly, or intentionally fails to restrain a dog commits a Level 6 felony if the dog enters the property of another person, the dog attacks another person, and the attack results in serious bodily injury. Specifies that a person who mutilates a vertebrate animal with intent to threaten or terrorize a family member commits a Level 6 felony.

SB291 HUMAN TRAFFICKING INVESTIGATIONS. (WATERMAN J)
Provides that "law enforcement agency", for purposes of receiving information concerning a violation of the human trafficking statute, includes the attorney general and an agency whose principal function is the apprehension of criminal offenders. Specifies that the attorney general has the same authority as a law enforcement agency to access and maintain information regarding a violation of the human trafficking statute. Permits the attorney general to assist with the investigation and prosecution of a violation of the human trafficking statute.

SB395 BAIL. (STEELE B)
Provides that, if a court admits a defendant to bail, the court may require the defendant to do one of the following as selected by the defendant: (1) Execute a bail bond with sufficient solvent sureties. (2) Deposit cash or securities in an amount equal to the bail. (3) Execute a bond secured by real estate in the county, where thirty-three hundredths of the true tax value less encumbrances is at least equal to the amount of the bail. (4) Execute a bail bond by depositing cash with the clerk of the court in an amount not less than 15% of the bail. Provides that, if a defendant: (1) was admitted to bail by depositing cash or securities; and (2) has failed to appear before the court as ordered; the court shall declare the bond forfeited 120 days after the defendant's failure to appear and issue a warrant for the defendant's arrest. Specifies that, under the law concerning bail and bail procedure, a court: (1) may only declare a bond forfeited if a defendant fails to appear before the court as ordered; and (2) may not declare a bond forfeited because the defendant fails to perform any other condition of bail. Makes conforming amendments.

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