Legislature(2011 - 2012)BELTZ 105 (TSBldg)
04/04/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing|| Parole Board | |
| HB116 | |
| SB78 | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | HB 116 | TELECONFERENCED | |
| += | SB 30 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 78 | ||
SB 30-RETURN OF SEIZED PROPERTY
1:56:04 PM
CHAIR FRENCH announced the consideration of SB 30 and asked for
a motion to adopt the proposed committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt the proposed CS for SB 30,
labeled 27-LS0344\E, as the working document.
CHAIR FRENCH objected for discussion purposes and asked the
sponsor to tell the committee what the new CS does.
1:56:47 PM
SENATOR FRED DYSON, sponsor of SB 30, stated that the committee
reported the bill from committee on 3/21/11 and subsequent to
that the Department of Law (DOL) contacted him to suggest a
change in language. He agreed and the bill was returned to this
committee to potentially adopt the proposed amendment.
1:57:21 PM
CHARLES KOPP, staff to Senator Fred Dyson, explained that the
amendment makes the following changes to version D:
Page 2, line 6, insert the following sentence at the beginning
of subsection (c): "At the hearing, a party that objects to the
return of the property shall state the reason on the record."
Page 2, line 11, delete the words "is authorized" and insert the
word "needs"
Page 2, line 12, following the word "property" insert the phrase
"for evidentiary purposes as authorized in this chapter."
Page 2, lines 13-18, delete the language in subsection (d) and
insert the following language:
If the court orders the return of the property to
the crime victim, the court may impose reasonable
conditions on the return. Those conditions may include
an order that the crime victim retain and store the
property so that the property is available for future
court hearings, requiring photographs of the property
to be taken, or any other condition the court
considers necessary to maintain the evidentiary
integrity of the property.
1:59:45 PM
CHAIR FRENCH asked Ms. Carpeneti to discuss DOL's reasoning in
suggesting the changes.
2:00:09 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law (DOL) said Attorney General Burns believes
that the language in subsection (d) of version D is too
restrictive. DOL agreed and suggested a redraft to give the
court more discretion in ordering conditions for the return of
evidence in individual cases.
CHAIR FRENCH noted a letter of support from the National
Federation of Independent Businesses. He asked Mr. Moody if he
had reviewed the bill and had any suggestions to offer.
DOUGLAS MOODY, Assistant Public Defender, Public Defender
Agency, said he believes that the language in subsection (c)(2)
on page 2 will breed problems because the law enforcement agency
and the defense are frequently are at odds as to whether the
evidence should be retained. The defense should be able to make
its own case at the hearing.
CHAIR FRENCH asked what he is suggesting.
MR. MOODY suggested the following language:
the law enforcement agency for the defendant in
a criminal case fails to prove by a preponderance of
the evidence that the agency, the defendant, or
another interested party …
We don't want DOL to carry our water, he said. It's our need and
our burden and it should fall on us.
2:05:10 PM
CHAIR FRENCH asked the sponsor to respond.
MR. KOPP said he hasn't discussed this with the sponsor, but the
suggested language seems to be consistent with the language in
subsection (b) on page 1 as to who gets notice.
SENATOR DYSON said he sees no harm listing the defense in the
first paragraph on page 1.
2:07:53 PM
CHAIR FRENCH called an at ease from 2:07 p.m. to 2:10 p.m.
2:10:57 PM
CHAIR FRENCH said there's a suggestion to add both the
prosecution and the defense on page 2, line 11.
MR. KOPP pointed out that page 2, line 6, says that anyone who
objects to the return of the evidence shall state the reason on
the record. The inference is that it's coming before the court.
CHAIR FRENCH said he believes it needs to be redrafted to say
that the court has found that in the interest of justice it's
appropriate to release the property. It seems odd to say all
three have to overcome their own burden.
2:12:11 PM
SENATOR WIELECHOWSKI said another suggestion is to replace "the
law enforcement agency" with "the party that objects" to put the
burden of the preponderance of the evidence onto that party.
CHAIR FRENCH said that makes it clear.
SENATOR PASKVAN said he agrees with that.
CHAIR FRENCH asked Ms. Carpeneti what she thinks about Senator
Wielechowski's suggested language. It keeps non interested
parties from having to do anything.
MS. CARPENETI said she'd prefer it says, "a party that objects"
because there could be two parties.
SENATOR WIELECHOWSKI asked about adding "and a court finds that
it is in the best interest to return…" because the judge may
believe that the evidence should be retained even if no one came
forward.
CHAIR FRENCH said subsection (d) takes care of that when it says
the court may impose reasonable conditions.
SENATOR WIELECHOWSKI asked if this gives the court sufficient
latitude. For example, if a pro se defendant doesn't show up for
the hearing they haven't proved by a preponderance of the
evidence but the court may still believe that it's in the best
interest to retain the evidence.
CHAIR FRENCH said judges aren't supposed to do that and the law
enforcement agency will be present in any case.
SENATOR DYSON reminded the committee that the bill relates to
property crimes and it seeks to keep the victim from being
victimized a second time. If there's a disagreement as to
whether the property is returned, the judge decides.
2:16:03 PM
CHAIR FRENCH announced he would hold SB 30 in committee awaiting
a new draft.
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