2010 Legislative Update : 2010 Legislative Update Tim Arnold and Damon Preston
How do Bills Become Law? : How do Bills Become Law?
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 As originally proposed, GPS monitoring would have been ordered in civil domestic proceedings.
As passed, this bill will be enforced in criminal proceedings.
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 KRS 403.720 - Family Member
“a spouse, including a former spouse, a grandparent, a parent, a child, a stepchild, or any other person living in the same household as a child if the child is the alleged victim”
(no more consanguinity or affinity relations)
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 KRS 403.720 – Family Member
Change applies to Assault 4th Domestic cases
The proposed amendment of “Unmarried Couple” to include dating but not cohabitating relationships did not pass.
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 Voluntary Referral to County Attorney by the Court
This could result in increased DPA cases
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 GPS Monitoring is Strike TWO
Specifically prohibited as a part of a DV order prior to a SUBSTANTIAL violation
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 A SUBSTANTIAL violation means:
A violation of a DVO (not EPO) that has resulted in one or more of these acts against the person protected by order: Assault
Menacing
Terroristic Threatening
Stalking
Wanton Endangerment
Kidnapping or related offense Sexual offense other than indecent exposure
Burglary
Criminal Damage to Property
Theft
Harassment or Harassing Communications
Any Felony Offense
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 Upon allegation of A SUBSTANTIAL violation,
A hearing shall be held to determine violation
GPS monitoring is a “sanction” that may be ordered “in lieu of imprison[ment]”
Order may include staying a specified distance away from a person or place if “specific, demonstrable danger” exists
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 Standards and Requirements for ordering GPS:
The Court shall “Consider the likelihood that without the utilization of [GPS] the respondent will seek to kill, assault, stalk, harass, menace, or otherwise threaten the [protected person]”
Enter reviewable findings of fact and reasons as to why the request for GPS is being granted or denied
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 Costs
Respondent must pay the costs of GPS, but it can be reduced based on indigency
Estimated to be just $7 per day
How much is that?
More than $5000 per year
(if both parties use it)
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 What happens when a GPS violation occurs?
Upon a violation, the GPS entity must immediately notify petitioner, court and law enforcement(no discretion)
Under KRS 403.760 (not amended by HB 1), any peace officer having probable cause to believe a violation has occurred “shall arrest the respondent without a warrant”.(no discretion)
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 Is Information Gathered by the System Private?
Gathered and maintained by a private GPS entity, not law enforcement or a court
Not a Public Record
Shall not be used for criminal investigation, prosecution, or other criminal justice related purpose without a valid search warrant or court order (applies to DVO GPS only)
Domestic Violence Bill – HB 1 : Domestic Violence Bill – HB 1 GPS is also authorized for criminal defendants on:
Pretrial Release
Diversion
Probation or Conditional Discharge
New Class A Misdemeanor of Domestic Violence Shelter Trespass is created for entering the premises or building of a Domestic Violence Shelter while under a DVO
Salvia Divinorum : Salvia Divinorum Legal Bad, bad, bad!
Salvia Divinorum : Salvia Divinorum Does not grow wild except in mountains of Oaxaca, Mexico
Grows more than 3 feet tall, with leaves which are 4 to 12 inches long.
Plant only rarely flowers, so generally not used as a garden plant
Does have psychedelic effects if smoked, chewed or consumed
Synthetic Cannabinoid Agonists or Piperazines : Synthetic Cannabinoid Agonists or Piperazines These substances are specifically defined:
any chemical compound that contains
Benzylpiperazine;
Trifluoromethylphenylpiperazine;
1,1-Dimethylheptyl-11-hydroxytetrahydrocannabinol;
1-Butyl-3-(1-naphthoyl)indole;
1-Pentyl-3-(1-naphthoyl)indole;
dexanabinol; or
2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol)
Salvia and Synthetic Cannabinoid Agonists : Salvia and Synthetic Cannabinoid Agonists New statutes created in KRS Ch. 218A punishing sale, cultivation and possession of salvia divinorum and possession, sale, and manufacture of synthetic cannabinoid agonists or piperazines.
Both are listed in Schedule I, but not subject to any of the penalties for Schedule I offenses
Treatment generally the same as marijuana, including eligibility for drug treatment under KRS 218A.276
Salvia and Synthetic Cannabinoid Agonists : Salvia and Synthetic Cannabinoid Agonists Sale, cultivation (Salvia), or manufacture (Cannabinoid Agonists or Piperazines) is a Class A misdemeanor.
Possession of either is a Class B misdemeanor
All are exempted from aggravators for proximity to school, unlawful transaction with a minor, or possession of firearm
SB 107 – Weird Extras : SB 107 – Weird Extras Drug paraphernalia second offense aggravator removed for all drug offenses (i.e., paraphernalia now always a misdemeanor)
In Theft by Deception Statute, the word “reasonable” was removed from “posted bad check handling fee not to exceed $50”
All provisions effective immediately
Don’t Text and Drive – HB 415 : Don’t Text and Drive – HB 415 May not read or write text messages or emails on a “personal communication device” while “in motion” on the “traveled portion of the roadway”
GPS systems exempted
Typing in a number to call on the phone exempted
Exceptions for “public safety” (i.e., texting needed to summon help)
Starting 1/1/11, penalty is $25 for first offense, $50 for subsequent offenses
Drugged Driver BillKRS 189A.010 : Drugged Driver BillKRS 189A.010 This change in the law is not yet effective
Lowers BA level for aggravated DUI from .18 to .15
Adds a manner of committing DUI:
(d) While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
Drugged Driver Bill : Drugged Driver Bill Any Schedule I controlled substance except marijuana;
Alprazolam (Xanex);
Amphetamine (Adderall);
Buprenorphine;
Butalbital;
Carisoprodol (Soma);
Cocaine;
Diazepam (Valium); Hydrocodone (Vicodin, Lortab);
Meprobamate;
Methadone;
Methamphetamine;
Oxycodone (OxyContin);
Promethazine (Phenergan);
Propoxyphene;
Zolpidem (Ambien) Only applies to the substances listed in the statute
Drugged Driver Bill : Drugged Driver Bill What if the defendant has a valid prescription?
The lab test for a controlled substance is inadmissible as evidence if the court finds:
the defendant consumed the substance under a valid prescription and was issued
By a practitioner in the course of professional practice
No showing that defendant obeyed restrictions or dosage recommendations is necessary.
License Suspension for Unpaid Restitution – KRS 532.356(3) : License Suspension for Unpaid Restitution – KRS 532.356(3) After significant input from DPA and judges, mandatory license suspension for defendants who have not paid restitution was amended (but not repealed).
Now, a court MAY suspend a person’s license if restitution remains unpaid at the time of sentencing.
A hardship license is possible immediately; the court may waive the standard waiting period.
Sexual Assault Examinations – HB 500 : Sexual Assault Examinations – HB 500 Law now requires hospital to have either SANE nurse, “or other qualified medical health professional.”
All persons claiming to be victims of sexual assault are entitled to an examination.
Examinations are to be paid for by the state.
Victims can now choose not to report their own abuse.
If no abuse reported after 90 days, samples taken in examination can be destroyed.
Changes to Sex Offense Statutes to Protect Inmates – SB 17 : Changes to Sex Offense Statutes to Protect Inmates – SB 17 Sexual contact is prohibited between employees and volunteers at a correctional or juvenile facility, and the inmates or residents of that facility.
Sexual intercourse is Rape 3rd
Deviate sexual intercourse is Sodomy 3rd
Sexual contact with an adult inmate or resident is Sexual Abuse 2nd
Sexual contact with a juvenile resident (i.e., under 18 at the time of contact) remains Sexual Abuse 1st
Inmates : Inmates Good News
May be issued an ID card or drivers license within 30 days of release, with birth certificate, resident record card, and notarized letter of release (HB 428)
Bad News
May be fined if they file a complaint without exhausting administrative remedies (SB 32)
May be charged co-payments for medical services received at the jail (SB 47)
Juvenile Records – SB 131 : Juvenile Records – SB 131 DJJ Commission may deem certain records to be a “threat to the safety of the institution” and prohibit access.
Statute permits DJJ to respond in 5 days, rather than 3, and requires appeals to go through the Attorney General.
Child’s attorney exempted from provisions of statute, so attorney should be permitted access to all records, even those deemed by the Commissioner to present a safety risk.
Justice Housekeeping – HB 564 : Justice Housekeeping – HB 564 Public Advocacy Commission – a criminal defense attorney designated by the Governor was added to the Commission to replace the Head of the Office of Legislative and Intergovernmental Services.
Parole Board - Part-time members eliminated and chair subjected to termination by the Governor
Justice Housekeeping – HB 564 : Justice Housekeeping – HB 564 Largely ratifies and makes permanent all changes made in FY 09-10 budget bill
90 days credit for GED or completion of a drug treatment program
Meritorious good time credit of 7 days/month (discretionary with the prison)
Justice Housekeeping – HB 564 : Justice Housekeeping – HB 564 Largely ratifies and makes permanent all changes made in FY 09-10 budget bill
Home incarceration for D felons within 180 days of release
Credit for “street time” for prisoner’s released on parole, unless they commit a new felony offense while on parole, or are in arrears on their restitution
Expungement of void or dismissed disciplinary violations
Grammar Bowl “Creative Construction of the Week” : Grammar Bowl “Creative Construction of the Week” “To the extent that any provision included in this Act is considered new language, the provisions of KRS 446.145 requiring such new language to be underlined are notwithstood.” HB 564, Section 13
FY 11-12 Budget Bill – Corrections Impact : FY 11-12 Budget Bill – Corrections Impact Includes many of the same provisions which were enacted into law in HB 564
New provisions include
Maximum parole deferments of 24 months for non-violent, non-sexual C and D felons
Maximum parole deferments of 10 years past initial eligibility, except for life sentences. Parole deferments longer than 5 years require the full vote of the board
Parole officers may send violators to jail for 10 days (maximum 30 days in a one year period) in lieu of seeking revocation
Further budget bill impact : Further budget bill impact Operation Unite received millions in funding in the next two years.
Dollars allocated for Prescription Assistance Program for the indigent receiving services through regional mental health/mental retardation boards so our social workers may see some benefits here.
Pretrial Services Interview : Pretrial Services Interview KRS 431.515 amended to require that pretrial officers determine whether a person has been in combat by asking:
Have you served in the National Guard or the United States Armed Forces and been in combat?
For anyone who says they have been in combat, pretrial officers are to provide contact information to Military Services programs and an opportunity to call the program during the interview.
Mental Health Exam for PFO Defendants : Mental Health Exam for PFO Defendants Did you know a mental health exam by a state psychiatrist was mandatory for anyone charged with PFO with at least two prior felonies?
Yeah, we didn’t either! (the statute, KRS 210.360, is not in the Blue/Green book)
In any event, IT HAS BEEN REPEALED
So Never Mind!!
Commercial Motor Vehicle Inspectors : Commercial Motor Vehicle Inspectors Replacing Department of Highways Weighmasters are commercial vehicle inspectors employed by the Kentucky State Police.
Firearms Laws : Firearms Laws It is a crime to “take game” with a firearm during bow season, punishable by fine of $100 to $1000 and up to six months in jail
“The principles contained in KRS Chapter 503 relating to the use of force and deadly force against human beings shall apply to acts where wildlife is involved.”
What Did Not Pass : What Did Not Pass Ignition Interlock Expansion
Dating Relationship DVO Protection
Penal Code Reform (PFO, Sentences for Drug Offenses, Enhancements)
Sexting
Restoration of Voting Rights for Felons
Until Next Year… : Until Next Year…