Bill Summary – FastDemocracy

67th Legislature                                                                                                    HB 596.1
                                                    HOUSE BILL NO. 596
                                                 INTRODUCED BY J. READ
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   A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING CRIMINAL PROCEDURE; PROVIDING
   FOR COMPENSATION FOR VICTIMS OF INJURIOUS CRIMINAL PROCEDURE; CREATING A DEFENSE
   FOR NONVIOLENTLY RESISTING FALSE ARREST; CREATING A DEFENSE FOR NONVIOLENTLY
   OBSTRUCTING A PEACE OFFICER WHO IS ACTING ILLEGALLY; REVISING OFFICIAL MISCONDUCT TO
   INCLUDE A NEW OFFENSE FOR WHICH FINES MAY BE ASSESSED; REQUIRING REPORTING TO THE
   OFFICE OF VICTIMS SERVICES; PROVIDING FOR RELEASE ON CERTAIN IRREGULAR WARRANTS;
   REVISING REQUIREMENTS FOR ARREST WARRANTS; REVISING ARREST PROCEDURE; REVISING
   DUTIES OF THE ATTORNEY GENERAL; STATING THE LEGISLATURE'S INTENT TO COMPENSATE
   VICTIMS OF INJURIOUS CRIMINAL PROCEDURE; REQUIRING REPORTS TO THE LEGISLATURE;
   REVISING COMPENSATION LAW; PROVIDING RULEMAKING AUTHORITY; DEFINING "FALSE ARREST",
   "FALSE IMPRISONMENT", AND "INJURIOUS CRIMINAL PROCEDURE"; AND AMENDING SECTIONS 45-7-
   301, 45-7-302, 45-7-401, 46-6-204, 46-6-212, 46-6-214, 46-6-216, 46-24-101, 46-24-103, 53-9-102, 53-9-103,
   53-9-104, 53-9-113, 53-9-125, AND 53-9-128, MCA.”
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              NEW SECTION. Section 1.        Compensation benefits for victims of injurious criminal procedure.
   (1) Compensation must be given to any victim of injurious criminal procedure who is falsely arrested or falsely
   imprisoned.
              (2)   (a) For a victim of a false arrest lasting 2 days or less, the compensation must be four times the
   price of bail that was demanded of the victim.
              (b)   For a victim of false arrest lasting longer than 2 days, the compensation must be 400% of the
   person's daily wage for every day of false arrest. A victim of false arrest lasting longer than 2 days may not be
   paid less than the state average wage.
              (3)   (a) For a victim of false imprisonment lasting 1 month or more, the compensation must be a lump
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   sum payment of $4,000 for each month of false imprisonment, adjusted for inflation from [the effective date of
   this act].
              (b)   For a victim of false imprisonment who is terminated from employment as a result of the
   imprisonment, the compensation must be a lump sum payment equal to the person's annual income prior to the
   termination.
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              Section 2. Section 45-7-301, MCA, is amended to read:
              "45-7-301.    Resisting arrest. (1) A person commits the offense of resisting arrest if the person
   knowingly prevents or attempts to prevent a peace officer from effecting an arrest by:
              (a)   using or threatening to use physical force or violence against the peace officer or another; or
              (b)   using any other means that creates a risk of causing physical injury to the peace officer or
   another.
              (2)   (a) ItExcept as provided in subsection (2)(b), it is no defense to a prosecution under this section
   that the arrest was unlawful, if the peace officer was acting under color of the officer's official authority.
              (b)   It is a defense to a prosecution under this section that the arrest was unlawful or mistaken, if the
   person was arrested nonviolently and passively resisted arrest by refusing to comply with a peace officer.
              (3)   A person convicted of the offense of resisting arrest shall be fined not to exceed $500 or be
   imprisoned in the county jail for any term not to exceed 6 months, or both."
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              Section 3. Section 45-7-302, MCA, is amended to read:
              "45-7-302.    Obstructing peace officer or other public servant -- affirmative defense -- definitional
   nonobstruction. (1) A person commits the offense of obstructing a peace officer or public servant if the person
   knowingly obstructs, impairs, or hinders the enforcement of the criminal law, the preservation of the peace, or
   the performance of a governmental function, including service of process.
              (2)   (a) ItExcept as provided in subsection (2)(b), it is no defense to a prosecution under this section
   that the peace officer was acting in an illegal manner, provided that the peace officer was acting under the
   peace officer's official authority.
              (b)   It is a defense to prosecution under this section if a person arrested asserts to the arresting officer,
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   the county attorney, and in court that the arresting officer acted without legal authority or the facts did not
   warrant the charges against the person arrested. A court shall look in the light most favorable to the person
   asserting this defense concerning the facts and the legal arguments.
              (3)   (a) Asserting that a peace officer is in violation of the officer's oath to the constitutions of the
   United States and Montana is not obstruction of a peace officer.
              (b)   Challenging peaceably an officer's particularized suspicion for a stop is not obstruction of a peace
   officer.
              (3)(4)   A person convicted of the offense of obstructing a peace officer or other public servant,
   including a person serving process, shall be fined not to exceed $500 or be imprisoned in the county jail for a
   term not to exceed 6 months, or both."
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              Section 4. Section 45-7-401, MCA, is amended to read:
              "45-7-401.    Official misconduct. (1) A public servant commits the offense of official misconduct when
   in an official capacity the public servant commits any of the following acts:
              (a)   purposely or negligently fails to perform any mandatory duty as required by law or by a court of
   competent jurisdiction;
              (b)   knowingly performs an act in an official capacity that the public servant knows is forbidden by law;
              (c)   with the purpose to obtain a personal advantage or an advantage for another, performs an act in
   excess of the public servant's lawful authority;
              (d)   solicits or knowingly accepts for the performance of any act a fee or reward that the public servant
   knows is not authorized by law; or
              (e)   knowingly conducts a meeting of a public agency in violation of 2-3-203.; or
              (f)   knowingly or negligently issues a warrant that is mistaken in fact and causes a false arrest.
              (2)   A public servant convicted of the offense of official misconduct shall be fined not to exceed $500
   or be imprisoned in the county jail for a term not to exceed 6 months, or both.
              (3)   The district court has exclusive jurisdiction in prosecutions under this section. Any action for
   official misconduct must be commenced by an information filed after leave to file has been granted by the
   district court or after a grand jury indictment has been found.
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              (4)   A public servant who has been charged as provided in subsection (3) may be suspended from
   office without pay pending final judgment. Upon final judgment of conviction, the public servant shall
   permanently forfeit the public servant's office. Upon acquittal, the public servant must be reinstated in office and
   must receive all backpay.
              (5)   This section does not affect any power conferred by law to impeach or remove any public servant
   or any proceeding authorized by law to carry into effect an impeachment or removal.
              (6)   A public servant alleged to have committed official misconduct or convicted of official misconduct
   pursuant to subsection (1)(f) shall report the allegation or conviction to the office of victims services.
              (7)   As used in this section, "public servant" includes any person employed by the state or by a local
   government."
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              Section 5. Section 46-6-204, MCA, is amended to read:
              "46-6-204.    Minor irregularitiesIrregularities in warrant. (1) NoA warrant of arrest shall may not be
   dismissed nor shall any and a person in custody for an offense may not be discharged from such custody
   because of technical irregularities not affecting the substantial rights of the accused.
              (2)   (a) A person in custody as a result of mistaken identity due to irregularities in the warrant must be:
              (i)   released immediately on discovery of the mistaken identity;
              (ii) given a written and public apology explaining the basis for the mistake and stating the basis for the
   person's compensation; and
              (iii) given written notice that the person may report the arrest and release to the office of victims
   services.
              (b)   The irregularities in the warrant and the release of the person falsely arrested must be
   immediately reported to the office of victims services by a public official responsible for the person's release and
   may also be reported by the person falsely arrested.
              (c)   The written and public apology must be released to the local media."
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              Section 6. Section 46-6-212, MCA, is amended to read:
              "46-6-212.    Failure to appear following summons or notice to appear. (1) (a) If, after the issuance
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   of a summons or notice to appear, the judge becomes satisfied that the person has not appeared or will not
   appear as commanded, the judge may at once issue an arrest warrant.
              (b)      The judge shall determine that the information on the warrant accurately identifies the person to
   be arrested. Any mistake made in the issuance of the warrant is subject to a claim before the office of victims
   services and a claim of misconduct.
              (2)      If after being summoned the corporation does not appear, a plea of not guilty must be entered in
   accordance with 46-12-204 and the matter must proceed to trial and judgment without further process."
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              Section 7. Section 46-6-214, MCA, is amended to read:
              "46-6-214.       Form and content of arrest warrant. (1) An arrest warrant must:
              (a)      be in writing in the name of the state of Montana or in the name of a municipality if a violation of a
   municipal ordinance is charged;
              (b)      set forth the nature of the offense;
              (c)      command that the person against whom the complaint was made be arrested and brought before
   the nearest or most accessible court for an initial appearance;
              (d)      specify the name of the person to be arrested or, if that person's name is unknown, designate the
   person by any name or description by which the person can be identified with reasonable certainty;if the name
   of the person to be arrested is known, specify the name of the person and:
              (i)   if the person has a Montana driver's license, include the person's driver's license number and
   photograph; or
              (ii) if the person does not have a Montana driver's license, include a photograph of the person or a
   composite drawing of the person if a photograph is not available but the person's appearance is known;
              (e)      if the name of the person to be arrested is unknown:
              (i)   designate the person by any name or description by which the person can be identified with
   reasonable certainty; and
              (ii) include a photograph of the person or a composite drawing of the person if a photograph is not
   available but the person's appearance is known;
              (e)(f)     state the date when issued and the municipality or county where issued; and
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              (f)(g)     be signed by the judge of the court with the title of office noted.
              (2)      An arrest warrant that does not conform to the criteria in subsection (1) is irregular.
              (3)      (a) An arrest warrant expires 1 year after issuance.
              (b)      A valid or expired warrant may be renewed by reissuance at any time after diligently attempting to
   update information on the warrant.
              (2)      The (4)    An arrest warrant may specify the amount of bail.
              (5)      The department of justice shall adopt rules necessary to implement this section."
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              Section 8. Section 46-6-216, MCA, is amended to read:
              "46-6-216.         Manner of arrest with warrant. (1) When making an arrest pursuant to a warrant, a
   peace officer shall inform the person to be arrested of the officer's authority, the intention to arrest that person,
   the cause of the arrest, and the fact that a warrant has been issued for that person's arrest, except:
              (a)      when the person flees or forcibly resists before the peace officer has an opportunity to inform the
   person; or
              (b)      when the giving of the information will imperil the arrest.
              (2)      (a) The peace officer need not have possession of the warrant at the time of the arrest, but after
   the arrest, the warrant must be shown to the person arrested as soon as practicable if the person requests.
              (b)      If the person arrested identifies irregularities or defects on the warrant and can demonstrate that
   the person is not the individual specified by the warrant, the person must be immediately released and may not
   be questioned further.
              (3)      If the person to be arrested or the person arrested claims mistaken identity, the peace officer shall
   make an official note of the claim at the first opportunity and then immediately report the claim to the peace
   officer's commanding officer."
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              Section 9. Section 46-24-101, MCA, is amended to read:
              "46-24-101.         Purpose. The legislature declares that the purposes of this chapter are to:
              (1)      protect the role of crime victims and witnesses in the criminal justice process;
              (2)      assureensure that victims and witnesses of crime receive fair and proper treatment from law
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   enforcement agencies and prosecutors; and
              (3)   provide a standard of conduct governing the treatment of victims and witnesses in criminal cases.;
   and
              (4)   provide for the fair and proper treatment of victims of injurious criminal procedure."
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              Section 10. Section 46-24-103, MCA, is amended to read:
              "46-24-103. Duty of attorney general. (1) The attorney general shall ensure that victims and
   witnesses of crime receive fair and proper treatment in the criminal justice system. The attorney general shall
   prepare a written notice of the rights and services available to victims of crime under this chapter. The notice
   must be distributed to local law enforcement agencies in the state. In addition, the attorney general shall ensure
   that victims and witnesses are provided important services and assistance as required under this chapter.
              (2)   The attorney general shall ensure that a victim of injurious criminal procedure as defined in 53-9-
   103 is given fair and proper treatment concerning any remedy for false arrest or false imprisonment.
              (3)   The attorney general, through the office of victims services, shall keep a record of any acts done
   in the criminal justice system that led to false arrests or false imprisonments, including the issuance of warrants
   with irregularities."
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              Section 11. Section 53-9-102, MCA, is amended to read:
              "53-9-102.    Legislative purpose and intent. It is the intent of the legislature to provide a method of
   compensating those persons within the state who are innocent victims of criminal acts and injurious criminal
   procedure, including acts of international terrorism, as defined in 18 U.S.C. 2331, that are committed outside of
   the United States against a resident of this state, and who suffer bodily injury or death and those innocent
   citizens of this state who are injured or killed in a state that does not