Legislature(2011 - 2012)BELTZ 105 (TSBldg)

04/04/2011 01:30 PM Senate JUDICIARY


Download Mp3. <- Right click and save file as

Audio Topic
01:33:37 PM Start
01:34:12 PM Confirmation Hearing|| Parole Board
01:41:47 PM HB116
01:50:33 PM SB78
01:56:04 PM SB30
02:16:53 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Board Confirmations: Parole Board TELECONFERENCED
+ HB 116 CORRECT SPELLING OF LORAZEPAM/OXYMORPHONE TELECONFERENCED
Moved HB 116 am Out of Committee
+= SB 30 RETURN OF SEIZED PROPERTY TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 78 LIQUOR LICENSE HOLDER LIABILITY
Moved CSSB 78(JUD) Out of Committee
                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.                                                                                                                    

Document Name Date/Time Subjects