Criminal Law

April 10, 2013 | Category: Criminal

The House Judiciary Committee heard SB 373, sponsored by Rep. Friend, making it unlawful to record agricultural and industrial operations. The bill was substantially amended by consent and is now entitled trespass and application fraud. The amended bill provides that a person who knowingly or intentionally submits an application to a prospective employer to secure employment, and makes a false statement about a material fact or conceals a material fact in the application in order to secure employment, commits application fraud, a Class A misdemeanor. The amended bill also provides that, for the purposes of criminal trespass, a person has been denied entry to property by means of a fence, wall, or other constructed barrier that reasonably implies entry is prohibited. It also provides that a person making a false or misleading written statement with the intent to obtain employment is excluded from the deception statute. The amendment resolved the concerns of the individuals who testified against the bill. The amended bill passed, 7-3.

Criminal Law

April 5, 2013 | Category: Criminal

The Senate Appropriations Committee heard HB 1006, sponsored by Sen. Steele, Sen. M. Young, and Sen. Hume, making various changes to the criminal code. An amendment was adopted removing provisions for the state payment of chief and assistant chief probation officer salaries for both courts of record and city and town courts. The amendment also removed language creating the probation improvement fund. Sen. Hume observed that the amendment seemed contrary to the bill’s aims to increase treatment and offender programs at the county level. Sen. Kenley said that HB 1006 when implemented in 2014 “may create some lower level fiscal impact,” and said he was willing to consider funding for the “actual needs” resulting from the bill’s changes. The probation funding, he said, seemed like a “random number” selected as a way to defray the local impact of the bill and did not seem to be based on any identified expense increase anticipated from the bill. Sen. Tallian put together a group of stakeholders to discuss funding issues and expects to have some ideas very soon to give Sen. Kenley from this group. Sen. Kenley said that he had talked with sponsor Sen. Steele, author Rep. Steuerwald, David Powell of the Prosecuting Attorneys Council, and Criminal Code Evaluation Commission work group leader Deborah Daniels, and concluded that “we need to move forward with this bill” in order to adjust sentencing levels after 40 years of incremental legislative changes. The amended bill passed, 13-0.

Criminal Law

March 28, 2013 | Category: Criminal

The Senate Public Policy Committee heard Sen. Alting’s SR 47 on establishing a study committee on court appointed mental health professionals. The study would look at what types of mental health professionals judges can appoint to determine competency. The resolution passed, 9-0.

The House Courts and Criminal Code Committee heard SB 223, sponsored by Rep. McMillin, on child exploitation. The bill provides that the offense of child exploitation includes filming, disseminating, or otherwise making available material depicting the genitals of a child less than 18 years of age if filming, dissemination, or making the material available was performed with the intent to satisfy or arouse the sexual desires of any person. Sen. M. Young presented an amendment to expand the types of images subject to the offense under subsection (b)(4) to include the female breast without opaque covering of the nipple. The amendment was adopted by consent and the amended bill passed, 8-0.

The House Courts and Criminal Code Committee heard SB 347, sponsored by Rep. McMillin, on child solicitation. Sen. Head explained that the bill amends the child solicitation offense to make it a B felony to solicit a child by computer, and then drive to meet solicited child, or take a substantial step. The bill also responds to the social media prohibition for registered sex offenders that was held unconstitutionally overbroad by the 7th Circuit by narrowing the prohibition. The bill passed, 9-0.

The Senate Corrections & Criminal Law Committee heard HB 1006, sponsored by Sen. Steele, Sen. M. Young, and Sen. Hume, originally prepared by the Criminal Code Evaluation Commission making various changes to the criminal code. The hearing took two Committee sessions.

Prosecuting Attorneys Council Executive Director David Powell testified in favor of “the process and the bill.” One of his concerns was the bill’s reduced penalties for lesser drug offenses. He said he expects that the lower penalties and expanded suspension opportunities for drug offenders will result in significant increases of people being kept in the counties without a provision of adequate additional funding to provide the programs and supervision they require.

POPAI President Don Travis testified about the need for probation funding and urged that the 1.9 million dollars for the probation improvement fund removed in the House be restored.  He spoke favorably of the Judicial Center’s alcohol and drug program support. He also praised the bill’s provision for state payment of chief probation officer salaries and expressed disappointment that state payment of deputy chief probation officer salaries had been removed from the bill.

The Sheriffs’ Association testified in support of the bill and expressed confidence that with adequate funding significant help for offenders through jail programs can be provided.
Theresa Harper, presiding judge of the Monroe Circuit Court, testified about the development of evidence-based assessments and practices to help judges with objective guidance about the needs of offenders so that sentences best suited to individuals may be imposed. She cited development of the Indiana Risk Assessment System and the expansion of problem-solving court usage in Indiana, and said that Indiana must “get smart on crime” by using the tools which research shows work.

Larry Landis, Executive Director of the Indiana Public Defenders’ Council, testified in support of the bill’s proportionality scheme but objected to the credit time and the lack of funding for the local programs. He urged the Committee to seriously consider having sentences changed to current levels, studied for a year, and then increased if appropriate, noting that it is virtually impossible politically for legislators to reduce sentence levels once they are enacted.

Randy Koester, Deputy Commissioner of the Department of Correction, testified about the difficulty of predicting the impact of the bill on DOC populations, and handed out estimates varying depending on their assumptions about sentencing practices under the bill.

Legislative fiscal analyst Mark Goodpastor explained the assumptions he made in his fiscal impact analysis for the bill. Criminal Code Evaluation Commission work group head Deborah Daniels answered a number of questions about changes the bill makes to particular offenses.

The bill was amended to reinsert state funding for deputy chief probation officers in courts of records and for chief and deputy probation officers in city and town courts. Fiscal analyst Mark Goodpastor pointed out that his estimate for these salary expenses were 6.6 million for chief probation officer in courts of record, 5.4 million for deputy chiefs in courts of record, and 1.1 million for city and town chiefs and deputies. An amendment was adopted to make murder sentences nonsuspendible and to add firefighters and EMT’s back into the battery by bodily waste enhanced offense for  battery. Rep. Steuerwald presented an amendment, which the Prosecuting Attorneys Council helped him draft, to increase the bill’s penalties for marijuana crimes by one level and to remove the intermediate dealing offense. The Committee Chair suggested that the Governor’s office had endorsed this proposal. The amendment was adopted by a 7-1 vote. The amended bill passed, 8-1.

The Senate Judiciary Committee heard HB 1482, sponsored by Sen. Steele, Sen. M. Young, and Sen. Rogers, on expungement. Author Rep. McMillin presented a substantial amendment incorporating many of the matters brought up in last week’s hearing by the Prosecuting Attorneys Council. The amendment would retain the no-fee expungement for arrest records when there was no charge or conviction. Under the amendment, misdemeanants can have their records sealed five years after conviction if they have completed the sentence and paid all fees and restitution. Less serious D felons may have their records sealed eight years after completion of all requirements of their sentence. The remedy for misdemeanants and less serious D felons is mandatory if they demonstrate they are eligible. For more serious D felonies and higher grade felonies the waiting period to petition for expungement is eight years after completion of the sentence, and for persons convicted of offenses with serious bodily injury, of homicides, or of sex offenses there is a wait period of ten years after completion of the sentence. For these two last categories of offenders the judge has discretion to grant or deny the expungement petition. If expungement is granted, the records will not be sealed but rather remain open to the public but stamped as expunged. An individual who files for expungement has a year period in which to seek expungments of any convictions, a “one shot” feature designed to prevent serial offenders from obtaining serial expungements. Discrimination against individuals on the basis of an expunged conviction will be prohibited under the amendment. David Powell of the Prosecuting Attorneys Council testified about the proposed amendment and some provisions in it he would have preferred not to have. At Sen. Steele’s insistence, the amendment was changed to avoid any requirement that prosecutors or police have to petition the court to have access to sealed records.  The amended bill passed 6-2.

Criminal Law

March 22, 2013 | Category: Criminal

The House Courts and Criminal Code Committee heard SB 53, sponsored by Rep. T. Brown, on child seduction. Sen. Boots testified that the bill provides that an individual engaged in a professional relationship with a child between the ages of 16 and 18 who uses this relationship to engage in a sexual relationship commits child seduction. A technical amendment correcting cross references within the bill was adopted by consent. A second amendment elevating the offense to a class C felony in certain circumstances and removing the language regarding the factors that a trier of fact may consider when determining whether or not the professional exerted undue influence over a child, was also adopted by consent. The amended bill passed, 10-0.

The House Courts and Criminal Code Committee heard SB 361, sponsored by Rep. Price, clarifying and expanding the crime of intimidation to include threats involving public buildings and structures. Sen. Crider introduced the bill explaining that this proposal is a result of threats made against a hospital that were not prosecutable under current law. The Public Defender Council expressed some concerns with the bill that were addressed by the amendments introduced by Rep. McMillin. Two amendments were adopted by consent clarifying bill language and limiting the application of the proposed changes to this crime. The amended bill passed, 9-0.

The Senate Corrections and Criminal Law Committee heard HB 1064, sponsored by Sen. Becker, adding ammonium chloride, potassium iodide, and calcium chloride to the list of chemical reagents and precursors that it is illegal to possess two or more of with the intent to manufacture a controlled substance. State Police representatives testified in favor of the bill, observing that it was based on field reports from law enforcement officers about the items they are finding methamphetamine manufacturers possessing. A number of Senators concluded that the bill would go too far by putting law-abiding citizens in jeopardy of investigation for possessing substances that have common legal uses. The bill failed, 3-5.

The Senate Judiciary Committee heard HB 1392, sponsored by Sen. M. Young, Sen. Hume, and Sen. Arnold, on criminal background checks.  Author Rep. Steuerwald noted that the bill had been approved by the Criminal Law and Sentencing Policy Study Committee. A key provision in the bill repeals last year’s legislation mandating that clerks restrict access to the records for all infractions 5 years after the infraction judgment is satisfied and substitutes a procedure for persons against whom infraction judgments are entered to petition 5 years after satisfying the judgment to have access to their record limited. Testimony from commercial criminal background check providers in favor of the bill was presented. A technical amendment was adopted by consent. The bill passed as amended, 7-0.

The Senate Corrections and Criminal Law Committee heard HB 1441, sponsored by Sen. Kruse, on valuable metal and scrap vehicles. This bill requires certificates of title or of authority for scrap sales of auto parts, including catalytic converters, and bills of sale for air conditioners or their replacements. Also, a person who knowingly or intentionally purchases or accepts a vehicle with intent to scrap or dismantle the vehicle without obtaining a certificate of authority for the vehicle; or a certificate of title for the vehicle; commits a Class B misdemeanor. Testimony was heard about increasing frequency of theft of catalytic converters for aluminum content and air conditioning coils for copper content. The bill will help make it more difficult for the thieves to sell these items to scrap dealers. Testimony from a number of scrap dealers in favor of the bill was heard. The bill was amended by consent to add language making it clear that the bill of sale for a replacement air conditioner would suffice to permit sale of the coil from the air conditioner being replaced. The bill passed, 6-1.

The Senate Judiciary Committee heard HB 1482, sponsored by Sen. Steele, Sen. M. Young, and Sen. Rogers, on expungement. The Decatur County Prosecutor testified in opposition to the bill. A major amendment was offered by the Indiana Prosecuting Attorneys Council (IPAC). The amendment states that persons not convicted, including persons who complete either diversion or deferral programs, would have an expedited process under the amendment to have their records sealed, without any filing fee.  The amendment would also prohibit any discrimination against unconvicted persons who obtain expungement relief, through an undefined “contempt” remedy. The amendment applies to misdemeanors and allows relief 5 years after conviction (less if the prosecutor agrees); the current version of the bill requires a 10-year wait. In contrast with the current version of the bill, the amendment would require the petitioner to swear that restitution has been paid, probation completed, and no additional convictions have occurred.  The amendment would make expungement a disposition – the record is to be amended to show “expunged” but access to it would not be restricted.  It also treats D felonies separately from misdemeanors, as opposed to the present bill that includes D felonies with the relief for misdemeanor convictions. The amendment requires an 8-year wait, as opposed to the existing bill’s 10 years. In contrast with the misdemeanor remedy, the court would not be required under the amendment to grant a D felony petitioner relief; the amendment would provide that court “may” grant relief.  For all other offenses above D felonies, the prosecutors’ amendment has a more extensive list of types of convictions for which expungement relief would not be authorized, unless the prosecutor consents. The petition form for relief under the amendment would have to be verified. The prosecutor would have to give notice of the petition to victims. The amendment would require that all child support obligations be current, a condition IPAC noted the legislators may not want to include. The amendment would require the “clear and convincing” standard for serious offense relief. A prohibition of unlawful discrimination when felonies are expunged, like that for misdemeanor relief, is in the amendment. The conviction records under the amendment would not to be hidden from the public but would instead be open and clearly marked “expunged.” In contrast, IPAC said, the bill as passed by the House is not clear how the records that are expunged are to be handled, lets the offender have some of the records, and also appears to require sealing of published opinions. IPAC said that under the present version of the bill there would be very significant fiscal impacts for storage of records, impacts which he said would be avoided by the amendment. Finally, IPAC stated that the amendment would call for significant fees, of $300, for persons petitioning to expunge convictions, due to the significant expenses entailed by the remedy. These fees would go directly to the courts, prosecutors, and other entities directly involved in the expungements. IPAC noted the significant potential expungement caseloads for courts and prosecutors, pointing out that in 2011 175,000 misdemeanors and 50,000 D felonies were filed; expungements for convictions from filings of such volume would clearly be a major addition to the criminal justice system workload. Committee members discussed whether “serial” expungements could be filed, so that multiple offenders could eventually have their extensive records “expunged.” Indiana Public Defender Council testified in favor of the bill, but objected to the prosecutor’s veto for expungement of more serious offenses. Rep. McMillin said that he would be glad to confer with IPAC and others to see what changes to the bill they could all agree to. The Committee agreed to hold the bill over for a week to permit discussions of amendments.

Criminal Law

March 15, 2013 | Category: Criminal

The House Courts and Criminal Code Committee heard SB 496, sponsored by Rep. McMillin, on the control of ephedrine and pseudoephedrine. The bill as passed by the Senate would limit the amount an individual may purchase without a prescription to 61 grams a year, approximately an eight-month supply, and increase penalties for possession of more than 10 grams under certain circumstances. Testimony was heard from a number of mayors and police officials about the significant adverse impact on their communities of methamphetamine manufacturing. After this testimony, an amendment to give municipalities authority to require prescriptions for pseudoephedrine was defeated. Another amendment, to remove the criminal penalty changes passed by the Senate for B felony and A felony possession of more than 10 grams under specified circumstances, was adopted by consent. The bill passed as amended, 12-0.

The House Courts and Criminal Code Committee heard SB 509, sponsored by Rep. McMillin, expanding the human trafficking offense to include trafficking of persons 16 and 17 years of age. A number of witnesses testified in favor of the legislation, and it was noted that the change in the bill would make Indiana’s law consistent with the trafficking offenses of other states and of the federal government. The bill passed, 12-0.

The House Courts and Criminal Code Committee heard SB 536, sponsored by Rep. M. Smith, on synthetic drugs. The bill would provide for revocation of a retail license for selling or offering to sell either a synthetic drug or a lookalike synthetic drug.  The bill also would continue the authorization for the state Pharmacy Board to declare substances to be synthetic, authorize the Attorney General to bring actions to obtain injunctions of the sale of synthetic substances or synthetic look-alikes, and add dealing in synthetic drugs or “synthetic drug lookalike substances” to both the list of offenses permitting forfeitures of vehicles and other property and to the Indiana RICO offense. It also would create a new A infraction/D or C felony of manufacturing or dealing a synthetic drug or “synthetic drug lookalike substance.” The bill passed, 11-0.

The Senate Corrections and Criminal Law Committee heard HB 1053, sponsored by Sen. Steele, Sen. M. Young, and Sen. Arnold, on sex offenses and sex offenders. The Committee previously amended the bill to make its language on rape and deviate conduct parallel the terminology used in HB 1006. The Committee rejected an amendment to remove the bill’s requirement that kidnapping and confinement require registration only if a court finds the offense was committed with a sexual purpose. The Committee also rejected an amendment to change the description of the “material” change in appearance the bill presently requires to trigger a registrant’s obligation to have a new registry photo taken. A third amendment, to increase the maximum amount a court may order as a sexual assault victim fee used to support rape crisis centers, was agreed to be considered on second reading if it was found not to have a fiscal impact requiring appropriations consideration. A technical amendment was adopted. The amended bill passed, 9-0.

The Senate Corrections and Criminal Law Committee heard HB 1093, sponsored by Sen. Landske and Sen. Arnold, on killing a law enforcement animal. Author Rep. VanDenburgh presented an amendment to strike authorization for the court to order a convicted defendant to pay “replacement costs” and substitute “cost to replace, which may include cost of training.”  The amendment also authorizes the law enforcement agency whose animal is killed or permanently disabled to claim assistance from the violent crimes victims compensation fund. The bill passed as amended, 6-0.

The Senate Public Policy Committee heard HB 1225, sponsored by Sen. Glick, prohibiting the sale of electronic cigarettes to minors and making it a Class C infraction for an individual less than 18 years of age to purchase, accept for personal use, or possess an electronic cigarette. A major cigarette manufacturer and the American Lung Association testified in favor of the bill. The bill passed, 8-0.

The Senate Corrections and Criminal Law Committee heard HB 1382, sponsored by Sen. Bray, placing certain substances on the controlled substances schedules. The bill passed, 7-0.

Criminal Law

March 8, 2013 | Category: Criminal

The House Courts and Criminal Code Committee heard SB 31, sponsored by Rep. McMillin and presented by Sen. Holdman, regarding the habitual offender charge filing deadline. The bill allows habitual offender amendments if the amendment is filed at least 30 days before trial, and permits an amendment to be made at any time if it does not prejudice the substantial rights of the defendant. It also provides that if an amendment is made less than 30 days before trial, the court shall grant a continuance to the State, for good cause shown; or to the defendant, for any reason.  The Prosecuting Attorneys Council testified in favor of the bill and noted this would provide more time for prosecutors to investigate criminal history to determine if a habitual offender charge should be filed. The bill passed, 12-0.

The House Courts and Criminal Code Committee also heard SB 168 concerning chemical tests for intoxication, sponsored and presented by Rep. McMillin, expanding the class of persons in Ind. Code § 9-30-6-6 that may take chemical tests to include a person qualified through training, experience, or education to obtain a bodily substance sample. The bill also specifies that a law enforcement officer who is an arresting officer or involved in the investigation of an accident or crime may not draw a blood sample, but may designate another qualified person, including another law enforcement officer, to draw a blood sample. An amendment precludes the designation of another person from the same investigative entity to obtain the chemical test sample. The Public Defenders Council testified on the amendment. The bill passed as amended, 11-1.

The House Courts and Criminal Code Committee heard SB 496, sponsored by Rep. McMillin, on control of ephedrine and pseudoephedrine sales. Extensive testimony was heard.
The bill was held to allow for additional testimony.

The House Courts and Criminal Code Committee heard SB 536, sponsored by Rep. M. Smith, on synthetic drugs. The Committee held the bill to assess possible vagueness or overbreadth issues in the proposed new look-alike synthetic drug offense.

The Senate Corrections Committee heard HB 1053, sponsored by Sen. Steele, Sen. M. Young, and Sen. Arnold and prepared by the Criminal Law and Sentencing Policy Study Committee, on sex offenses and sex offenders registration. The Committee discussed the bill provision requiring an offender to have a new registry photo taken if his appearance changes “materially,” an issue discussed extensively during the House hearing on this bill. The Indiana Prosecuting Attorneys Council objected to the bill’s provision that persons convicted of criminal confinement or kidnapping would not have to register if “the court finds that the offense was not committed for a sexual purpose.” The Committee held the bill for a week to address the concerns raised.

The Senate Corrections Committee heard HB 1093, sponsored by Sen. Landske and Sen. Arnold, on disabling or killing a law enforcement animal.  After receiving testimony from Anderson police officers, the Committee held the bill to draft an amendment including training and related expenses for killed or injured animals.

The Senate Corrections Committee heard HB 1256, unlawful possession of items in penal facilities, sponsored by Sen. Steele and Sen. Arnold. Author Rep. Dermody explained that the bill increases sanctions for trafficking, particularly if the item involved is a controlled substance, a deadly weapon, or a cellular telephone or other wireless or cellular communications device.  The Department of Correction testified in favor of the bill. The bill passed, 9-0.

Criminal Law

March 1, 2013 | Category: Criminal, Mid-Session Chart

Bill No. Bill Title Committee 2nd Reading 3rd Reading Sponsor(s)
SB 31 Habitual offender charge filing deadline 1/10/13 Do Pass –A 1/22/13 Engrossed 1/24/13 Passed 47-0 McMillin
SB 53 Child seduction 1/15/13 Do Pass –A 1/22/13 Engrossed 1/24/13 Passed 47-0 T. Brown
SB 119 Vehicular manslaughter 1/15/13 Do Pass –A 1/22/13 Engrossed 1/24/13 Passed 45-2 Mahan
SB 142 Statutes of limitations involving child sex abuse 2/14/13 Do Pass 2/19/13 Engrossed –A 2/21/13 Passed 49-0 McMillin
SB 156 Downloading of cell phone information by police 2/14/13 Do Pass –A 2/19/13 Engrossed 2/21/13 Passed 49-0 Speedy
SB 168 Chemical tests for intoxication 1/24/13 Do Pass –A 1/28/13 Engrossed –A 1/29/13 Passed 49-0 McMillin
SB 223 Child exploitation 2/7/13 Do Pass –A

2/14/13 Do Pass

 2/18/13 Engrossed 2/19/13 Passed 48-1 McMillin
SB 245 Collection of DNA samples from certain arrestees and fees 2/7/13 Do Pass –A

2/21/13 Do Pass –A

 2/25/13 Engrossed –A 2/26/13 Defeated 16-34 ——–
SB 347 Child solicitation 2/7/13 Do Pass –A 2/14/13 Engrossed –A 2/18/13 Passed 49-0 McMillin
SB 361 Intimidation 2/7/13 Do Pass –A 2/11/13 Engrossed –A 2/12/13 Passed 48-1 Price
SB 362 Battery by body waste 1/31/13 Do Pass 2/4/13 Engrossed

2/7/13 Engrossed –A

 2/11/13 Passed 47-1 T. Brown
SB 373 Agricultural and industrial operations 2/14/13 Do Pass –A 2/19/13 Engrossed –A

2/25/13 Engrossed –A

 2/26/13 Passed 30-20 Friend
SB 400 Aid in enforcing unconstitutional laws 2/14/13 Do Pass –A 2/18/13 Engrossed –A 2/21/13 Passed 31-17 McMillin
SB 496 Control of ephedrine and pseudoephedrine 1/31/13 Do Pass –A 2/5/13 Engrossed –A 2/11/13 Passed 44-4 McMillin
SB 509 Human trafficking 2/7/13 Do Pass –A 2/11/13 Engrossed 2/12/13 Passed 49-0 McMillin
SB 536 Synthetic drugs 1/31/13 Do Pass –A 2/18/13 Engrossed –A 2/19/13 Passed 47-2 M. Smith
HB 1006 Various changes to the criminal code 1/17/13 Do Pass –A

2/19/13 Do Pass –A

 2/21/13 Engrossed 2/25/13 Passed 80-13 Steele, M. Young, Hume
HB 1053 Sex offenses and sex offenders 2/14/13 Do Pass –A 2/18/13 Engrossed –A 2/19/13 Passed 92-0 Steele, M. Young, Arnold
HB 1064 Chemical reagents and precursors 1/17/13 Do Pass 1/22/13 Engrossed 1/23/13 Passed 93-1 Becker
HB 1093 Killing a law enforcement animal 2/7/13 Do Pass –A 2/11/13 Engrossed 2/12/13 Passed 97-0 Landske, Arnold
HB 1225 Sale of electronic cigarettes to minors 1/23/13 Do Pass –A 1/28/13 Engrossed –A 1/29/13 Passed 97-0 Glick
HB 1256 Unlawful possession of items in penal facilities 1/31/13 Do Pass –A 2/4/13 Engrossed 2/5/13 Passed 99-0 Steele, Arnold
HB 1382 Controlled substances 2/14/13 Do Pass 2/18/13 Engrossed 2/19/13 Passed 94-0 Bray
HB 1392 Restricting criminal background checks 2/7/13 Do Pass 2/11/13 Engrossed 2/12/13 Passed 97-0 M. Young, Hume, Arnold
HB 1482 Expungement 1/31/13 Do Pass –A 2/4/13 Engrossed –A 2/5/13 Passed 82-17 Steele, M. Young, Rogers
HB 1524 Synthetic drugs 2/14/13 Do Pass –A 2/19/13 Engrossed –A 2/20/13 Passed 97-0 Merritt, Walker

Criminal Law

February 22, 2013 | Category: Criminal

The Senate Appropriations Committee heard SB 245, authored by Sen. Wyss and Sen. Arnold, on the collection of DNA samples from certain arrestees and fees.  The bill was amended to increase the DNA processing fee from $2 to $4 to provide additional funding to offset increased expenses for taking and testing samples from all persons arrested for burglary, residential entry, a crime of violence (as defined in Ind. Code § 35-50-1-2), or a sex offense (as defined in Ind. Code § 11-8-8-5.2). The bill passed as amended 7-4.

The House Ways and Means Committee resumed consideration of HB 1006, the criminal code reform bill making various changes to the criminal code.  Members discussed the potential impact of the bill’s change in credit time earning rates from a credit for each day served to a day of credit time for every three days served.  Author Rep. Steuerwald noted that the impact of the credit time change could not be accurately estimated, but that the bill aims to offset the longer time served on more serious offenses with reduced imprisonment for lesser offenses, for which probation and community correction will be used extensively. Chairman Rep. T. Brown noted that the Courts and Criminal Code Committee had amended the bill to prohibit the restoration of any earned credit time revoked for misconduct. An amendment, adopted by consent, deletes this language so that revoked credit time “may” be earned back. The Committee also adopted an amendment clarifying that the bill’s credit time changes apply only to persons convicted on or after July 1, 2014. Another amendment was also adopted changing the provision on funding for the probation improvement fund so that the funds come directly from the state general fund rather than the Department of Correction. Rep. Brown stated that the probation improvement fund will be funded at the 1.9 million dollar level initially. The bill passed as amended 20-0.

Criminal Law

February 15, 2013 | Category: Criminal

The Senate Corrections and Criminal Law Committee heard SB 142, authored by Sen. Mrvan and Sen. M. Young, on the statutes of limitations involving child sex abuse cases. The bill provides that statute of limitations in a civil action based on child sexual abuse is the later of seven years after the cause of action accrues or four years after the person ceases to be a dependent of the person alleged to have performed the sexual abuse. The bill also provides the statute of limitations in a criminal prosecution of certain sex offenses is five years from the later of ten years after the commission of the offense or four years after the person ceases to be a dependent of the person alleged to have committed the offense. The bill passed, 8-0.

The Senate Judiciary Committee heard SB 156 authored by Sen. Waltz and Sen. M. Young  prohibiting the  downloading of cell phone information by police for evidence of a violation of the law concerning typing, transmitting, or reading a text message while operating a motor vehicle unless the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime, or  the information is extracted or otherwise downloaded under a valid search warrant. These restrictions also apply if a law enforcement officer detains a person because the law enforcement officer believes the person has committed an infraction or ordinance violation. The bill was amended to waive the prohibition if the person consents or if law otherwise authorizes it. The amended bill passed, 8-0.

The Senate Corrections and Criminal Law Committee heard SB 223 on child exploitation authored by Sen. M. Young and Sen. Randolph. The bill provides that the offense of child exploitation includes filming, disseminating, or otherwise making available material depicting the genitals of a child less than 18 years of age if filming, dissemination, or making the material available was performed with the intent to satisfy or arouse the sexual desires of any person. The bill passed, 8-0.

The Senate Corrections and Criminal Law Committee heard SB 373 authored by Sen. Holdman on agricultural and industrial operations. This bill creates the offense of unlawful recording of agricultural or industrial operations, a Class A misdemeanor. An amendment clarifying various portions of the bill was adopted. The amended bill passed, 7-2.

The Senate Corrections and Criminal Law Committee heard SB 400 authored by Sen. Banks and Sen. M. Young pertaining to the detainment of citizens under federal defense act. The amended bill prohibits a state, unit or political subdivision employee, or member of the Indiana National Guard when on state duty, from aiding the United States, an agency of the United States, an agency of the armed forces of the United States, a private entity providing services to the United States or a state entity in the investigation, prosecution or detention of a person lawfully in Indiana that the state entity knows or reasonably should know deprives the person of life, liberty or property in violation of the federal or state constitution. The amended bill passed, 8-0.

The House Courts and Criminal Code heard Rep. Steuerwald’s HB 1053 making changes to sex offender registration statutes. This bill was prepared by the Criminal Law and Sentencing Policy Study Committee. The Sheriff’s Association and DOC support most of the bill’s provisions. The bill requires an offender to have a new registry photo taken if his appearance changes. The Committee amended the bill to insert the qualifier “materially” to better define the degree of appearance change needed to require a new photo. The bill also provides for the removal from the registry of information about persons who have died or are otherwise no longer obliged to register. The bill also changes the obligation of persons convicted of criminal confinement or kidnapping to register by requiring registration only if there was “a sexual purpose” for the crime, so the bill requires the sentencing court to determine by clear and convincing evidence that a kidnapping or confinement offense was committed “for a sexual purpose.” The bill passed, 11-2.

The House Courts and Criminal Code passed HB 1382 making 16 non-synthetic compounds controlled substances by a vote of 13-0.

The House Courts and Criminal Code Committee reconsidered HB 1524, Rep. Smith’s bill on synthetic drugs.  The bill was amended so that it is identical to SB 536. The amended bill passed, 13-0

Criminal Law

February 8, 2013 | Category: Criminal

The Senate Judiciary Committee heard SB 245, authored by Sen. Wyss and Sen. Zakas, on the collection of DNA samples from felony arrestees.  The bill was amended to only place the requirement to submit a DNA sample for inclusion in the Indiana DNA data base on persons arrested for burglary, residential entry, a crime of violence, or a sex offense after June 30, 2013. The bill also provides for the expungement of a DNA sample taken from a person arrested for a felony if the person is acquitted of all charges, the person’s conviction is reversed, or the case is dismissed. A second amendment requires the arrestee must be informed of his or her right for expungement. The Indiana State Police and the Indiana Prosecuting Attorneys Council testified in favor of the bill. The amended bill passed, 5-2.

The Senate Corrections and Criminal Law Committee again heard SB 347 on child solicitation authored by Sen. Head. The bill was amended to provide that instant messaging or chat room program and social networking websites are defined in Ind. Code § 35-42-4-12; include additional elements to address concerns with proportionality for the class B felony charge; amend Ind. Code § 35-42-4-12 in response to the decision from the 7th Circuit regarding sex offenders’ use of social networking, instant messaging, or chat room programs; and provide a defense for a person who knowingly or intentionally uses social networking, instant messaging, or chat room programs to communicate with a child less than 16 years of age that the person reasonably believed that the child was at least 16 years of age. The bill passed as amended, 10-0.

The Senate Corrections and Criminal Law Committee heard SB 361 on intimidation, authored by Sen. Crider. The bill provides that intimidation includes communicating by social networking web sites with intent that the person threatened receives the message. The amendment adds that communicating a threat with the intent to inhibit occupancy of certain buildings is intimidation. The amended bill also provides that class D felony intimidation includes threats communicated to an employee, representative, student, patient, or invitee of a hospital, school, church, or religious organization. The amended bill passed 9-0.

The Senate Corrections and Criminal Law Committee heard Sen. Waterman’s SB 509 making human trafficking a class B felony if the child is less than 18 years of age.  The current law set the age at less than 16 years of age. The Committee amended the Class A felony so that if  a person who is at least 18 years of age  knowingly or intentionally sells or transfers custody of a child less than 18 years of age for the purpose of prostitution or  participating in sexual conduct.  The Committee passed the amended bill 10-0.

The House Ways and Means Committee heard HB 1006, the Criminal Code Evaluation Commission bill making various changes to the criminal code.  Author Rep. Steuerwald presented the bill with co-author Rep. Pierce. Testimony was received about the difficulty in estimating the fiscal impact of the changes in sentencing in the bill, particularly the changes in credit time earning rates from a day’s credit time for each day served to one day’s credit time for each three days served. The authors stated they thought the fiscal effects would not be significant. An amendment reinstates the “credit restricted felon” credit time earning class.  A second amendment places 80% of bail bond agent renewal licensing fees in the probation improvement fund. Legislative Services fiscal analyst Mark Goodpastor explained that low range of expense impact rested on the best-case outcome from much-reduced DOC commitments for lower-level offenses balancing the increased incarceration times from the reduced credit-earning and other factors, and that his alternative high range fiscal impact figures assumed higher rates of county jail commitments for lower-level offenders. Committee Chair Rep. T. Brown said that the testimony about increased probation, community corrections, and jail expenses the reform bill will trigger had convinced him to hold, for now, an amendment he had prepared which would remove the bill’s provision for state payment of chief probation officer and deputy chief probation officer salaries. The Association of Indiana Counties and Sheriffs Association testified that the counties will have increased expenses from reductions in lower-level offender DOC populations. The Sheriffs Association asked that the $35 per diem DOC pays to the jails for housing a DOC-commitment prisoner be examined because the actual jail cost per day to house an inmate was close to $50.  The Association of Counties testified that counties will have significant expenses from jail populations increases; it was noted that 25 counties presently have jail populations at the maximum rating. The Indiana Judges Association supported the bill and read a supporting statement from the Chief Justice. The bill was held for further discussion about how it would “greatly” increase long term incarceration costs by having all committed offenders serve 75% of their sentences.

The House Courts and Criminal Code Committee heard HB 1093, Rep. Vandenburgh’s bill requiring that the sentence for killing a law enforcement animal include a restitution order for payment of the cost to replace the animal. An amendment was adopted to make restitution for payment of veterinary bills discretionary. The bill passed 12-0.

The House Courts and Criminal Code Committee passed HB 1392, Rep. Steuerwald’s bill on restricting criminal background checks. The bill alters much of last year’s legislation placing requirements on commercial providers of criminal history information when arrest or conviction records are ordered restricted. The Criminal Law and Sentencing Policy Study Committee approved the changes made in the bill after receiving testimony from history providers like LexisNexis. A key provision in the bill repeals last year’s legislation mandating that clerks restrict access to the records for all infractions 5 years after the infraction judgment is satisfied and substitutes a procedure for persons against whom infraction judgments are entered to petition 5 years after satisfying the judgment to have access to their record limited. The bill passed 12-0.

The House Courts and Criminal Code Committee heard HB 1524 on synthetic drugs. This bill is essentially identical to SB 536, amended and passed last week by the Senate Corrections Committee. The Committee held the bill for amendment to make the House bill consistent with the Senate version.