Final Legislative Update 2008

April 14, 2008 | Category: General

The final update of the activities of the 2008 Indiana General Assembly
A publication of the Indiana Judicial Center
This final legislative update contains summaries of select bills of interest or portions of bills that were signed into law this session. The legislative digest for all bills passed this session can be found at http://www.in.gov/legislative/reports/2008/DIGEST_OF_ENACTMENTS.PDF.

If you would like to see the entire text of any law, you can find that information at http://www.in.gov/apps/lsa/session/billwatch/billinfo.

If you would like to print the “Final Legislative Update,” you many do so by clicking on the following link:
http://www.in.gov/judiciary/center/legislation/2008/final-update.pdf.

Civil Law

April 14, 2008 | Category: Civil

Landlord-tenant statutes
H.E.A. 1061, P.L. 62
Effective July 1, 2008
Provides that the landlord-tenant statutes apply to the sale of a rental unit or property if the rental agreement entered into after June 30, 2008, explicitly or implicitly provides for a rental period and contains an option to purchase.

Criminal Law

April 14, 2008 | Category: Criminal

Cooling off period for domestic battery
S.E.A. 27, P.L. 44
Effective July 1, 2008
Requires that a facility having custody of a person arrested for a crime of domestic violence, as defined in IC 35-41-1-6.3, shall keep the person in custody for eight (8) hours. Provides that the court may not release such a person on bail until eight (8) hours after arrest.

Parole issues – No parole discharge papers to clerk of sentencing court
S.E.A. 117, P.L. 46
Effective July 1, 2008
Repeals the IC 11-13-3-5 requirement that the parole board send the clerk of the sentencing court, and that the clerk then file, a copy of the board’s order discharging an offender from parole.

Violation of probation and home detention
S.E.A. 139, P.L. 48
Effective July 1, 2008
Amends the probation revocation statutes to specifically provide that the court may impose one or more of the listed sanctions, codifying the decision in Prewitt v. State, 878 N.E.2d 184 (Ind. 2007). Amends the home detention statutes to permit an offender, who lives in an adjacent county, to be placed on home detention and supervised by the sentencing county.

Domestic violence; no contact orders
S.E.A. 227, P.L. 104
Effective July 1, 2008
Adds a new section, IC 35-38-1-30, which provides that “[a] sentencing court may require that, as a condition of a person’s executed sentence, the person shall refrain from any direct or indirect contact with an individual.” Amends the bail conditions statute, IC 35-33-8-3, to add to the existing special condition (4) (defendant “to refrain from any direct or indirect contact with an individual”) the new phrase “including if the defendant has not been released from lawful detention.”

Sex offenders and new offenses, electronic sentencing abstracts, aggravating sentencing factor based on victim’s disability
S.E.A. 258, P.L. 119
Effective July 1, 2008

  • Sex offenders and new offenses
    * Requires sex offender registrants to provide e-mail addresses and other Internet use information.
    * Adds to the list of forfeitable items computer equipment and cell phones used or intended to be used to commit IC 35-42 sex crimes.
    * Amends IC 35-38-2-2.2 regarding the mandatory condition of probation not to live within 1,000 feet of school property by defining the 1,000 foot limit as from residence property line to school property line.
    * Amends IC 35-38-2-2.2 to add the requirement that the court shall, as conditions of probation, order that a sex offender: (1) consent to searches of his personal computer at any time, (2) consent to the installation on the computer, at the offender’s expense, of hardware or software systems to monitor Internet usage, (3) not access or use “certain web sites, chat rooms, or instant messaging programs frequented by children,” and (4) not delete, erase, or tamper with information on the computer “with intent to conceal” having engaged in the prohibited access.
    * Creates a new Class A misdemeanor or D felony for a sexually violent predator, or a sex offender with prior convictions of specified offenses against children, who knowingly or intentionally uses a “social networking web site” or an “instant messaging or chat room program” which the offender knows children access or use.
    * Creates a new Class B or A misdemeanor for a person 21 or older who, with intent to gratify sexual desires, engages in “inappropriate communication” with a child less than 14 concerning defined sexual activities.
  • Aggravating sentencing factor
    Adds to the list of aggravating sentencing factors the factor that the victim of the offense was “a person with a disability (as defined in IC 27-7-6-12), and the defendant knew or should have known that the victim was a person with a disability.”

  • Electronic sentencing abstracts
    Adds the abstract of conviction, the judgment of conviction, and the sentencing order to the list of items a sentencing court is to send to the Department of Correction when it commits an offender to the Department. Provides that the court may use “any electronic means approved by the department of correction” to send sentencing information, including the presentence report, abstract of conviction, judgment of conviction, and sentencing order, to the Department.

Motorist duties at scene of accident, OWI offenses, and consecutive sentences
H.E.A. 1052, P.L. 126
Effective for crimes committed on or after July 1, 2008

  • Motorist duties at accident scene
    Amends IC 9-26-1-1 to provide that the duties of a motorist involved in an accident to stop at the accident scene, notify the appropriate law enforcement agency, and render reasonable assistance applies not only if the accident results in serious bodily injury or death but also in the entrapment of a person in a vehicle. Provides that if the driver of a vehicle in an accident resulting in an entrapment is incapable of providing assistance then any passenger who is at least 15 years of age with a learner’s permit and capable of assisting must assist instead. Makes it a Class C misdemeanor to knowingly, intentionally, or recklessly fail to comply with this passenger’s duty to assist. Amends the leaving the scene offense to add a requirement that the offender has “knowingly or intentionally” committed the offense. Amends the leaving the scene offense to make the offense a Class B felony if knowingly or intentionally committed by a person who leaves after committing operating while intoxicated resulting in serious bodily injury.
  • OWI offenses and consecutive sentencing
    Amends IC 9-30-5-3 to provide that a person who commits the IC 9-30-5-1 operating with .08 BAC or the IC 9-30-5-2 operating while intoxicated offenses commits a Class C felony if the person has a prior conviction of operating while intoxicated causing serious bodily injury or death. Amends the IC 9-30-5-10 provision on license suspension for the .08 BAC or OWI offenses by adding the following language: “The court may require that a period of suspension recommended under this section be imposed, if applicable, before a period of incarceration or after a period of incarceration, or both before and after a period of incarceration, as long as the suspension otherwise complies with the periods established in this section.” Adds to the IC 35-50-1-2 list of “violent crimes” not subject to any cap on consecutive sentencing: OWI causing serious bodily injury, and resisting law enforcement as a felony.

Disarming a law enforcement officer
H.E.A. 1074, P.L. 64
Effective July 1, 2008
Adds a new Class C felony for knowingly or intentionally taking or attempting to take a firearm or weapon from a person the taker knows is a law
enforcement officer. Makes it a Class B felony if the offense results in serious bodily injury to the officer and a Class A felony if the offense results in death of the officer or if a firearm is taken and the offense results in serious bodily injury to the officer. Adds the crime of disarming a law enforcement officer crime to the list of offenses for which the “minimum sentence” cannot be suspended.

Furnishing alcoholic beverages to a minor
H.E.A. 1118, P.L. 94
Effective July 1, 2008
Amends IC 7.1-5-7-8 to raise the penalty for furnishing alcohol to a minor from a C misdemeanor to a B misdemeanor. Makes the furnishing alcohol offense an A misdemeanor if the person has a prior conviction of furnishing. Makes the furnishing alcohol offense a C 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.” Increases the penalty from a Class C infraction to a Class C misdemeanor for a minor to use a false statement of age or false identification to obtain alcoholic beverages, and adds the requirement that the misdemeanor be committed “knowingly or intentionally.” Increases various civil penalties assessed against retailers who sell tobacco to individuals less than eighteen years of age, and against individuals who are less than eighteen years of age who unlawfully enter retail establishments that primarily sell tobacco products.

Inmate credit time – lower credit time earning class for sex offenders
H.E.A 1271, P.L. 80
Effective July 1, 2008
Creates a new “credit restricted felon” class for persons convicted of child molesting by intercourse or deviate conduct when at least 21 and the child was under 12, or convicted of child molesting resulting in death or serious bodily injury, or convicted of murder when committing or attempting to commit child molesting or when the victim was the victim of a sex crime of which the defendant was convicted or when the victim was to be a witness in a sex crime prosecution and was killed to prevent testimony. Provides that “credit restricted felons” are assigned to a new Class IV which earns a day of credit time for each six days served, and further provides that “credit restricted felons” may never be placed in the Class I or II day-for-day or day-for-two-days classes. Provides that “credit restricted felons” may be demoted to the Class III no-credit-time class. Provides that an offender cannot earn educational credit time for obtaining a high school diploma if the offender has already earned a G.E.D. or for obtaining a G.E.D. if the offender has already received a high school diploma.

Bail – hearing required for certain sex offenders
H.E.A. 1276, P.L. 74
Effective July 1, 2008
Provides that a court may not admit the following persons to bail until after the court has conducted a bail hearing in open court:
1) A person who is already an IC 35-38-1-7.5 sexually violent predator who has been arrested for or charged with an offense that would classify the person as a sex or violent offender as defined in IC 11-8-8-5, or
2) A person charged with child molesting, or
3) A person charged with child solicitation.
Provides that the bail hearing must be held within forty-eight (48) hours of arrest unless “exigent circumstances” prevent the hearing within that period. Provides that at the conclusion of the hearing the court is to consider whether the factors listed in 35-33-8-4 “warrant the imposition of a bail amount that exceeds court or county guidelines, if applicable.”

Family & Juvenile Law

April 14, 2008 | Category: Family/Juvenile

Property tax relief (provision on juvenile courts)
H.E.A. 1001, P.L. 146
Various effective dates
This legislation provides for significant changes in the funding of child services and juvenile court procedures. The Judicial Center’s summary of this bill can be found at: http://www.in.gov/judiciary/center/legislation/hea1001-summary.pdf.

Juvenile offenders and detention centers
H.E.A. 1122, P.L. 67
Effective July 1, 2008

  • Misdemeanor jurisdiction over juveniles
    Amends IC 31-30-1-2(1) to grant juvenile court jurisdiction over cases involving juveniles who commit misdemeanor traffic violations. Amends IC 31-30-1-2 to give the juvenile court jurisdiction over cases involving juveniles previously waived to a court with misdemeanor jurisdiction. Amends IC 31-30-1-4(a)(10) to provide a juvenile court does not have jurisdiction over a juvenile who is at least 16 years of age and commits a felony handgun violation. Amends IC 31-30-3-2 to permit a juvenile court to waive jurisdiction if a child is charged with a felony for certain patterns of delinquent acts if the juvenile is at least 14 years of age and other conditions are met.

  • Juvenile detention centers
    Permits a representative or designee of the Indiana Criminal Justice Institute’s compliance monitoring program reasonable access to inspect and monitor any facility used to house or hold juveniles to ensure the requirements of the Juvenile Justice Delinquency Prevention Act are maintained.

Homelessness, foster youth and education
H.E.A. 1165, P.L. 133
Effective July 1, 2008

  • Homelessness and education
    Requires schools to establish an office of coordinator for education of homeless children. Prohibits enrollment of a student in a school corporation primarily for athletic reasons. Requires certain schools to transport students in foster care to and from the school where the student was enrolled before receiving foster care.
  • Homeless Child
    Adds a new chapter to require an emergency shelter, shelter care facility or certain other programs to give shelter to a child without notification, consent, or permission of the child’s parent, guardian, or custodian. The DCS shall be notified no later than 24 hours after entry into the facility. The DCS shall conduct an investigation concerning the child no later than 48 hours after receiving the notification. The DCS shall notify the child’s parent, guardian or custodian within 72 hours that the child entered the facility, unless the DCS has reason to believe the child is a victim of abuse or neglect.
  • Foster care sibling visitation
    Adds a new chapter to require the DCS to make reasonable efforts to promote sibling visitation for every child who receives foster care, including when one sibling receives foster care and another sibling does not. Permits a GAL/CASA to petition the juvenile court for sibling visitation if the DCS denies a request for sibling visitation.

School attendance and enforcement
H.E.A. 1234, P.L. 34
Effective July 1, 2008
Permits school corporation and certain security police to inspect school attendance records. Permits an affidavit against a parent for a violation of the compulsory school attendance law to be filed in the court with jurisdiction in the county where the child resides, rather than only in the circuit court.

Child Safety and CHINS
H.E.A. 1259, P.L. 72
Effective March 13, 2008 (§ 3-4); July 1, 2009 (§1-2)
Requires DCS to provide notice at least 7 days before the periodic case review and the permanency hearing in CHINS cases, rather than sending notice 10 days before the review. Adds foster parents to the persons required to receive notice. Requires the DCS to provide proof of service of the notice at the periodic case review. Requires the DCS to provide notice to a party or individual in accordance with IC 31-32-1-4. Requires DCS to provide notice in the same manner to children at least 16 when the proposed permanency plan provides for transition of the child from foster care to independent living.

Older youth foster care, Interstate Compact on the Placement of Children, Commission on Disproportionality in Youth Services
H.E.A. 1290, P.L. 143
Effective July 1, 2008, unless otherwise indicated

  • Older youth foster care
    Provides certain juveniles who received foster care at least one month before turning 18 years of age, but who are less than 21, may request the DCS to petition a court for older youth foster care services from the DCS. A court shall grant the petition if the individual is employed, attending a vocational or educational certification or degree program, or planning on attending a program of this type within 6 months of the individuals 18th birthday.
  • Interstate Compact on the Placement of Children
    Adopts the new Interstate Compact for the Placement of Children. Includes provisions for placement of abused and neglected and delinquent children in facilities, placement as a preliminary step in adoptions, supervision of placements and data collection between member states. Excludes custody and other matters from the scope of the compact.
  • Commission on Disproportionality in Youth Services
    Extends deadlines of the Commission on Disproportionality in Youth Services’ report from August 15 to November 15, 2008, and the release of the report to the public from December 1 to December 15, 2008.

Judicial Administration

April 14, 2008 | Category: Administration

Judges’ pensions – court fees and study of judicial selection process
S.E.A. 329; P.L. 122
Effective July 1, 2008

  • Court administration fee (§2-4)
    Increases the court administration fee from $3 to $5 and applies the additional amount to the judges’ retirement fund. Marion County Small Claims courts will distribute 40% of the court administration fee collected to the township trustee for use in funding court operations.
  • St. Joseph County judges (§25)
    Requires the Commission on Courts to study the selection of judges in St. Joseph County and report any findings and recommendations in its final report due by November 1, 2008.

Various provisions concerning courts
H.E.A. 1096, P.L. 127
Effective July 1, 2008

  • Hardship licenses
    Allows a petition for a hardship driving license to be filed in the superior court of the county in which the petitioner resides. If at the time a petition for a hardship driving license is filed:
    (1) the petitioner is a defendant in a pending case concerning the operation of a vehicle while intoxicated;
    (2) the petitioner is on probation after being convicted of operating a vehicle while intoxicated; or
    (3) the petitioner’s driving privileges have been suspended after the petitioner was convicted of committing a controlled substance offense;
    the petition may be filed only in the circuit court or superior court in which the case is pending or the petitioner was convicted.
  • Clerk of the Supreme Court
    Removes references to the clerk of the supreme court from statutes concerning compensation of elected officials, and annual economic interest statements filed by judicial officers or candidates for judicial office who are subject to election or a retention vote.
  • Powers of a magistrate
    Provides that the powers of a magistrate include the power to enter a final order or judgment in a proceeding involving the small claims docket of the court and protective orders to prevent domestic or family violence.
  • Franklin County Courts
    Adds a second judge to the Franklin circuit court as of January 1, 2009. Abolishes the Franklin circuit court magistrate as of January 1, 2009.
  • Madison County Courts
    Abolishes the Madison county court as of January 1, 2009. Increases the number of judges serving on the Madison superior court from three to five judges on January 1, 2009, and provides that the two persons elected Madison county court judges on November 4, 2008, become the fourth and fifth judges of the Madison superior court.
  • Miami County Courts
    Adds a second judge to the Miami superior court on January 1, 2009.
  • Dearborn, Jefferson, Ohio, & Switzerland County Courts
    Provides that as of January 1, 2009: (1) the Ohio County and Switzerland County joint superior court is abolished; (2) the Jefferson County and Switzerland County joint fifth judicial circuit is abolished; and (3) Jefferson County constitutes and continues in the fifth judicial circuit and Switzerland County constitutes a new ninety-first judicial circuit. Allows the judge of the Dearborn and Ohio circuit court to appoint one full-time magistrate. Prohibits the state from paying any amount of the salary of a chief deputy prosecuting attorney appointed by the prosecuting attorney for the Switzerland County ninety-first judicial circuit.
  • St. Joseph Probate Court magistrates
    Allows the judge of the St. Joseph probate court to appoint three full-time magistrates instead of one.

Law enforcement continuing education program court fee
H.E.A 1318, P.L. 97
Effective July 1, 2008
Increases the law enforcement continuing education program court fee from $3 to $4.

Note: The Judicial salaries fee also increase by $1 effective July 1st. IC 33-37-5-26.

Miscellaneous

April 14, 2008 | Category: Miscellaneous

Courthouse Preservation Advisory Commission
S.E.A. 176, P.L. 85
Effective July 1, 2008
Establishes the courthouse preservation advisory commission and the courthouse preservation fund. Requires the commission to provide assistance for courthouse related projects and to submit a report to the legislative council.

Funding for Community Mental Health Centers
S.E.A. 350, P.L. 123
Effective March 24, 2008 (§7), July 1, 2008 (all other sections)
Requires counties, except Marion County, to transfer money to the division of mental health and addiction to satisfy the non-federal share of medical assistance payments to community mental health centers for certain administrative and community mental health rehabilitation services. Permits the health and hospital corporation of Marion County to make payments to the division for the operation of a community mental health center. Requires the division to ensure that the non-federal share of funding received from a county is applied only for a county’s designated community mental health center and outlines the manner in which the division may distribute certain excess state funds. Describes how the county levy for community mental health services is allocated. Provides that the provisions of the bill are applicable only to the extent that: (1) the congressional moratorium on the implementation of certain rules by the U.S. Secretary of Health and Human Services is not extended; and (2) the restricted rules are implemented. Makes conforming changes.

Probate Law

April 14, 2008 | Category: Probate

Probate and trust matters
S.E.A. 78, P.L. 101
Effective March 21, 2008 (§§ 1-3, 13), July 1, 2008 (§§4-12)

  • Qualified personal residence trusts
    If otherwise qualified, permits the grantor of the trust who has the right to occupy the residence rent free under the terms of the trust to claim certain property tax and homestead credits.
  • Safe deposit boxes
    Provides a list of persons allowed to access a safe deposit box upon the owner’s death in order of priority. Lists the rights of the person accessing the safe deposit box. Outlines requirements for an affidavit if a personal representative or trustee are seeking access to a safe deposit box prior to the opening of an estate. Lists the duties and responsibilities of the financial institutions upon receiving a request to access a safe deposit box. Lists the damages that can be awarded if a plaintiff is successful in an action to compel the financial institution to grant access to a safe deposit box.

  • Power of attorney to care for minors or protected persons
    Expands the period of time in which a parent or guardian can delegate to another person the care and custody of a minor or protected person to not more than twelve months. Removes the requirement that the parent or guardian has to by physically incapacitated or absent from the residence. Provides that this power may be revoked as provided by the power of attorney or by separate written instrument.
  • Abatement of trust property
    Provides an order for the abatement of trust property and that the abatement must be proportional to the amount of property a beneficiary would have received if full distribution had been made under the terms of the trust. The trust instrument may also provide for a different order of abatement. The abatement of property must be done in a manner determined appropriate to give effect to the settlor’s intent.
  • Executing power of attorney at principal’s direction
    Provides that a power of attorney can be signed at the direction of the principal in the presence of a notary public, and if so executed, the notary must state that the individual who signed the power of attorney did so at the direction of the principal.

  • Prohibition on inheritance due to commission of criminal act
    Provides that a parent who was convicted of causing the death of the other parent by: (1) murder, (2) voluntary manslaughter, (3) another criminal act (if the death does not result from the operation of a motor vehicle), or (4) a crime in another jurisdiction which would be substantially similar to the above crimes, is disqualified from receiving an intestate share of the minor or adult child’s estate. The child’s estate is then distributed as if the disqualified parent predeceased the child.

    Transfer on death conveyances
    S.E.A. 81, P.L. 83
    Effective July 1, 2008
    Allows an individual to designate one or more individuals as transfer on death beneficiaries on a certificate of title for a vehicle or watercraft. Upon the death of the individual, interest in the vehicle transfers to each beneficiary named on the certificate of title and who survive the transferor. These transfers are subject to the provisions of IC 6-4.1 on inheritance taxes.

Salaries & Benefits

April 14, 2008 | Category: Salaries/Benefits

Judges’ pensions
S.E.A. 329, P.L.122
Effective July 1, 2008
Provides that the base computation of annual retirement benefit is the salary being paid for the office that the participant held at the time of separation from service for certain participants in the 1985 plan who apply for retirement after December 31, 2009. For participants who retired before January 1, 2010, or for certain terminated vested participants, the benefit increases paid after December 31, 2009 are equal to the percentage increase of the salary being paid for the office the participant held at the time of separation. Provides that a full-time magistrate serving on July 1, 2010 may elect to participate in the 1985 judges’ pension plan. Provides that a person who begins serving as a full-time magistrate after July 1, 2010 shall participate in the 1985 judges’ pension plan. Permits a magistrate participating in the 1985 plan to purchase service credit for service earned in PERF as a full-time referee, commissioner, or magistrate if certain conditions are met. Also under certain circumstances, allows a judge to transfer service credit earned as a full-time referee, commissioner, or magistrate after leaving a position covered by the 1985 plan.

We are nearing the end of this session. This installment is a series of topical charts detailing the status of bills of interest to the Judiciary that were heard on third reading. If a bill was amended at any stage in the legislative process, it is designated with an “-A” at the relevant stage. The next communication on legislation will be the Final Legislative Update summarizing bills that have been signed into law.

If you are interested in reading the text of any bill introduced this session, you may find bill information on Access Indiana at http://www.in.gov/apps/lsa/session/billwatch/billinfo.

If you are interested in the status of bills eligible for conference committee, you may find this information at http://www.in.gov/legislative/reports/2008/CNFGRIDH.PDF.

If you’re interested in a specific area of law, below are links to the topical charts by category. If you would like to review all categories, you may do so by opening the PDR document at the bottom of this post.

General Information

February 22, 2008 | Category: General

The committee hearing process has now ended for this session. As a reminder, the last day for third readings in the House is Wednesday, February 27th, and Thursday, February 28th in the Senate.

If you are interested in reading the text of any bill introduced this session, you may find bill information on Access Indiana at: http://www.in.gov/apps/lsa/session/billwatch/billinfo.