HOUSE BILL NO. 54

INTRODUCED BY MENAHAN R

BY REQUEST OF THE DEPARTMENT OF CORRECTIONS

A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING THAT THE CRIMINAL OFFENSE OF ASSAULT INCLUDES ASSAULT WITH A BODILY FLUID COMMITTED BY AN INCARCERATED PERSON; PROVIDING PENALTIES FOR THE OFFENSE; DEFINING "BODILY FLUID"; PROVIDING FOR TESTING OF THE ACCUSED'S URINE, BLOOD, OR SALIVA; AMENDING SECTIONS 41-5-206 AND 45-5-201, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 41-5-206, MCA, is amended to read:

"41-5-206. Filing in district court prior to formal proceedings in youth court. (1) The county attorney may, in the county attorney's discretion, file with the district court a motion for leave to file an information in the district court if:

(a) the youth charged was 12 years of age or older at the time of the conduct alleged to be unlawful and the unlawful act would if it had been committed by an adult constitute:

(i) sexual intercourse without consent as defined in 45-5-503;

(ii) deliberate homicide as defined in 45-5-102;

(iii) mitigated deliberate homicide as defined in 45-5-103; or

(iv) the attempt, as defined in 45-4-103, of or accountability, as provided in 45-2-301, for either deliberate or mitigated deliberate homicide; or

(b) the youth charged was 16 years of age or older at the time of the conduct alleged to be unlawful and the unlawful act is one or more of the following:

(i) negligent homicide as defined in 45-5-104;

(ii) arson as defined in 45-6-103;

(iii) aggravated or felony assault as defined in 45-5-202;

(iv) assault with a bodily fluid as defined in 45-5-201;

(v) robbery as defined in 45-5-401;

(vi) burglary or aggravated burglary as defined in 45-6-204;

(vii) aggravated kidnapping as defined in 45-5-303;

(viii) possession of explosives as defined in 45-8-335;

(ix) criminal sale of dangerous drugs as defined in 45-9-101;

(x) criminal production or manufacture of dangerous drugs as defined in 45-9-110;

(xi) attempt, as defined in 45-4-103, of or accountability, as provided in 45-2-301, for any of the acts enumerated in subsections (1)(b)(i) through (1)(b)(x);

(xii) use of threat to coerce criminal street gang membership or use of violence to coerce criminal street gang membership, as defined in 45-8-403.

(2) The county attorney shall file with the district court a petition for leave to file an information in district court if the youth was 17 years of age at the time the youth committed an offense listed under subsection (1).

(3) The district court shall grant leave to file the information if the court finds that there is probable cause to believe that the youth has committed the alleged offense and that, considering the seriousness of the offense and in the interests of community protection, the case should be filed in the district court.

(4) The filing of an information in district court terminates the jurisdiction of the youth court over the youth with respect to the acts alleged in the information. A youth may not be prosecuted in the district court for a criminal offense originally subject to the jurisdiction of the youth court unless the case has been filed in the district court as provided in this section. A case may be transferred to district court after prosecution as provided in 41-5-208 or 41-5-1605.

(5) An offense not enumerated in subsection (1) that arises during the commission of a crime enumerated in subsection (1) may be:

(a) tried in youth court;

(b) transferred to district court with an offense enumerated in subsection (1) upon motion of the county attorney and order of the district court judge.

(6) If a youth is found guilty in district court of any of the offenses enumerated in subsection (1) and is sentenced to the state prison, the commitment must be to the department of corrections. The department shall confine the youth in whatever institution that it considers proper, including a state youth correctional facility under the procedures of 52-5-111. However, a youth under 16 years of age may not be confined in a state prison facility. During the period of confinement, school-aged youth with disabilities must be provided an education consistent with the requirements of the federal Individuals With Disabilities Education Act, 20 U.S.C. 1400, et seq.

(7) A youth whose case is filed in the district court may not be detained or otherwise placed in a jail or other adult detention facility before final disposition of the youth's case unless:

(a) alternative facilities do not provide adequate security; and

(b) the youth is kept in an area that provides physical separation as well as sight and sound separation from adults accused or convicted of criminal offenses."

Section 2. Section 45-5-201, MCA, is amended to read:

"45-5-201. Assault. (1) A person commits the offense of assault if the person:

(a) purposely or knowingly causes bodily injury to another;

(b) negligently causes bodily injury to another with a weapon;

(c) purposely or knowingly makes physical contact of an insulting or provoking nature with another or, while incarcerated after being arrested for, charged with, or convicted of a criminal offense, causes one of the person's bodily fluids to make physical contact with another; or

(d) purposely or knowingly causes reasonable apprehension of bodily injury in another.

(2) Except as provided in subsection (3), a person convicted of assault shall be fined not to exceed $500 or be incarcerated in the county jail for any term not to exceed 6 months, or both.

(3) (a) If the victim is less than 14 years old and the offender is 18 or more years old, the offender, upon conviction under subsection (1)(a), shall be fined not to exceed $50,000 or be incarcerated in the state prison for a term not to exceed 5 years, or both.

(b) A person convicted of assault with a bodily fluid shall be fined not to exceed $5,000 or incarcerated in the state prison for a term not to exceed 5 years, or both. However, if at the time of the assault the person had reason to believe that the person was infected with a contagious or infectious disease, the person shall be fined not to exceed $50,000 or be incarcerated in the state prison for a term not to exceed 20 years, or both.

(4) As used in this section, "bodily fluid" means any bodily secretion, including but not limited to feces, urine, blood, and saliva.

(5) A person charged with assault with a bodily fluid may be required, at the request of the alleged victim, to provide a sample of the person's urine, blood, or saliva to be used to determine whether the charged person has or might have a contagious or infectious disease."

NEW SECTION. Section 3. Effective date. [This act] is effective on passage and approval.

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