Senate Bill No. 54
Introduced By shea
By Request of the Montana Board of Crime Control and the Department of Justice
A Bill for an Act entitled: "An Act generally revising the laws pertaining to crime victims and victims compensation; prohibiting the imposition of charges for filing a petition for an order of protection; PROVIDING THAT A VICTIM MUST BE GIVEN NOTICE OF AND AN OPPORTUNITY TO BE HEARD ON A PETITION FOR DESTRUCTION, DISPOSAL, OR USE OF EVIDENCE; clarifying that restitution payments will be made to the crime victims compensation and assistance account if the account has paid benefits to the victim; PROVIDING FOR REIMBURSEMENT OF OTHER GOVERNMENT AGENCIES AND OF INSURERS WHO HAVE COMPENSATED THE VICTIM; specifying probation supervisory fees in the allocation of payments made by an offender; clarifying the obligation of law enforcement agencies to pay for investigative medical examinations of victims of certain sexual offenses; authorizing victims' death benefits to be paid by lump sum; extending the subrogation rights of the crime victims compensation program to recoveries received by the victim from any third party; limiting victims' wage loss benefits to 26 weeks; amending sections 40-15-204, 46-5-307, 46-5-308, 46-15-411, 46-18-251, 46-24-206, 53-9-102, 53-9-103, and 53-9-128, MCA; and providing an effective date."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 40-15-204, MCA, is amended to read:
"40-15-204. Written orders of protection. (1) The court may
determine, on the basis of the respondent's history of
violence, the severity of the offense at issue, and the evidence presented at the hearing, determine that , to avoid further
injury or harm, the petitioner needs permanent protection. The court may order that the order of protection remain in effect
(2) In a dissolution proceeding, the district court may, upon request, issue either an order of protection for an appropriate period of time or a permanent order of protection.
(3) An order of protection may include all of the relief listed in 40-15-201, when appropriate.
(4) An order of protection may include restraining the respondent from any other named family member who is a minor. If this restriction is included, the respondent must be restrained from having contact with the minor for an appropriate time period as directed by the court or permanently if the court finds that the minor was a victim of abuse, a witness to abuse, or endangered by the environment of abuse.
(5) An order of protection issued under this section may continue for an appropriate time period as directed by the court or be made permanent under subsection (1), (2), or (4). The order may be terminated upon the petitioner's request that the order be dismissed.
(6) An order of protection must include a section that indicates whether there are any other civil or criminal actions pending involving the parties, a brief description of the action, and the court in which the action is filed.
(7) An amendment to a temporary order of protection or to an order of protection is effective only after it has been served in writing on the opposing party.
(8) There is no cost to file a petition for an order of protection or for service of an order of protection.
(9) Any temporary order of protection or order of protection must conspicuously bear the following:
"Violation of this order is a criminal offense under 45-5-220 or 45-5-626 and may carry penalties of up to $10,000 in fines and up to a 5-year jail sentence.
This order is issued by the court, and the respondent is forbidden to do any act listed in the order, even if invited by the petitioner or another person. This order may be amended only by further order of this court or another court that assumes jurisdiction over this matter.""
SECTION 2. SECTION 46-5-307, MCA, IS AMENDED TO READ:
"46-5-307. Petition for destruction, disposal, or use of evidence. (1) The prosecutor may file a petition with the court alleging that there exist certain items held as evidence either by the law enforcement agency or the court and that the items no longer have any evidentiary value. The petition must include:
(a) the name and title of the petitioner;
(b) the items of evidence sought to be destroyed, disposed of, or used, including a specific description of each that may be attached to the petition by separate inventory;
(c) when the items were seized;
(d) whether the items constitute contraband, which for the purposes of 46-5-306 through 46-5-309 means any property that is unlawful to produce or possess;
(e) whether the items relate to a filed case and, if so, the court and cause number of the case and its procedural status;
(f) whether, in those instances in which the items are not contraband, an effort has been made to return the items to the
apparent owner and the results of
such the effort;
(g) an allegation to the effect that any criminal prosecutions involving the items of evidence have been completed and no appeals are pending or that no criminal charges have been filed or are presently contemplated; and
(h) the petitioner's intentions relative to disposition of the items.
(2) If the petition requests the destruction or use of contraband, it must describe how destruction is to be accomplished or how the contraband has training or law enforcement value and its contemplated use by a law enforcement agency.
(3) The county attorney shall provide a victim of the offense with a copy of the petition and shall advise the court whether the victim wishes to be heard on the petition."
SECTION 3. SECTION 46-5-308, MCA, IS AMENDED TO READ:
"46-5-308. Order. (1) The court may enter an order providing for the destruction or disposition of the evidence. If a victim of the offense wishes to be heard on the petition, the court shall schedule a hearing on the petition and shall allow the victim to be heard in open court. The court shall consider the victim's statements prior to issuing an order under this section. A proposed order must be presented by the petitioner to the court and may include:
(a) authorization to destroy all contraband listed in the petition, the method of destruction, and the time within which
the destruction must be accomplished;
(b) if certain contraband is requested by the petitioner for training or law enforcement purposes, authorization to use the items and a description of each;
(c) if the petition requests training or law enforcement use of noncontraband items, authorization to retain the items by the law enforcement agency and a description of the items;
(d) if the evidence is money and the owner cannot be ascertained and no civil forfeiture action is pending, authorization to deposit the money to the appropriate city, county, or state drug forfeiture fund;
(e) if the petition requests, authorization to sell noncontraband property at public sale or auction and to deposit the proceeds to the appropriate city, county, or state drug forfeiture fund; or
(f) authorization to destroy all items not otherwise provided for.
(2) The order must specify the time period in which destruction or sale must occur. Within 10 days following the destruction or sale, a return must be filed with the court, listing the property destroyed or sold and the date and method of disposition."
Section 4. Section 46-15-411, MCA, is amended to read:
"46-15-411. Payment for medical evidence. (1) The local law enforcement agency within whose jurisdiction an alleged
incident of sexual intercourse without consent, sexual assault, or incest occurs shall pay for the medical examination of a
victim of the alleged
sexual intercourse without consent offense when the examination is directed by such the agency and
or when evidence obtained by the examination is used for the investigation, or prosecution, or resolution of an offense.
(2) This section does not require a law enforcement agency to pay any costs of treatment for injuries resulting from the alleged offense."
Section 5. Section 46-18-251, MCA, is amended to read:
"46-18-251. Allocation of fines, costs, restitution, and other charges. (1) If an offender is subjected to any combination of fines, costs, restitution, charges, or other payments arising out of the same criminal proceeding, money collected from the offender must be allocated as provided in this section.
(2) Except as otherwise provided in this section, if a defendant is subject to payment of restitution and any combination of fines, costs, charges under the provisions of 46-18-236, or other payments, 50% of all money collected from the defendant must be applied to payment of restitution and the balance must be applied to other payments in the following order:
(a) payment of charges imposed pursuant to 46-18-236;
(b) payment of supervisory fees imposed pursuant to 46-23-1031;
(b)(c) payment of costs imposed pursuant to 46-18-232 or 46-18-233; (c)(d) payment of fines imposed pursuant to 46-18-231 or 46-18-233; and (d)(e) any other payments ordered by the court. (3) If the victim receives benefits under Title 53, chapter 9, restitution payments must be distributed to the division of
crime control of the department of justice in accordance with 53-9-132. In order to receive restitution payments, the
division shall submit to the clerk of court or agency designated by the court proof of compensation benefits paid to the
victim. Once the victim has been fully compensated for the amount of restitution ordered by the court, either from the
crime victims compensation and assistance account or by direct restitution payments, remaining restitution payments must
be paid to the division to reimburse benefits previously paid to the victim.
(3) THE MONEY APPLIED UNDER SUBSECTION (2) TO THE PAYMENT OF RESTITUTION MUST BE PAID IN THE FOLLOWING ORDER:
(A) TO THE VICTIM UNTIL THE VICTIM'S UNREIMBURSED PECUNIARY LOSS IS SATISFIED;
(B) TO THE CRIME VICTIMS COMPENSATION AND ASSISTANCE ACCOUNT PROVIDED FOR IN 53-9-109 UNTIL THE ACCOUNT IS FULLY REIMBURSED FOR COMPENSATION TO THE VICTIM;
(C) TO ANY OTHER GOVERNMENT AGENCY THAT HAS COMPENSATED THE VICTIM FOR THE VICTIM'S PECUNIARY LOSS;
(D) TO ANY INSURANCE COMPANY THAT HAS COMPENSATED THE VICTIM FOR THE VICTIM'S PECUNIARY LOSS.
(3)(4) If any fines, costs, charges, or other payments remain unpaid after all of the restitution has been paid, any additional
money collected must be applied to payment of those fines, costs, charges, or other payments. If any restitution remains
unpaid after all of the fines, costs, charges, or other payments have been paid, any additional money collected must be
applied toward payment of the restitution."
SECTION 6. SECTION 46-24-206, MCA, IS AMENDED TO READ:
"46-24-206. Property return -- right to be heard on disposition of evidence. (1) A law enforcement agency or
prosecuting attorney shall promptly return any of the victim's property held for evidentiary purposes, unless there is a
compelling law enforcement reason for retaining
such the property.
(2) Before the destruction, disposal, or use of evidence that is not the victim's property, the court shall, as provided in 46-5-308, give the victim an opportunity to be heard as to the appropriate disposition of the evidence."
Section 7. Section 53-9-102, MCA, is amended to read:
"53-9-102. Legislative purpose and intent. It is the intent of the legislature
of this state to provide a method of
compensating those persons within the state who are innocent victims of criminal acts, 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
have a crime victims compensation program that covers out-of-state residents injured or killed in that state. To this end, it
is the legislature's intention to provide compensation for injuries suffered as a direct result of the criminal acts of other
persons and to coordinate victims' assistance programs."
Section 8. Section 53-9-103, MCA, is amended to read:
"53-9-103. Definitions. As used in this part, the following definitions apply:
(1) "Claimant" means any of the following claiming compensation under this part:
(a) a victim;
(b) a dependent of a deceased victim; or
(c) an authorized person acting on behalf of any of them.
(2) "Collateral source" means a source of benefits, other than welfare benefits, or advantages for economic loss otherwise
compensable under this part
which that the claimant has received or which that is readily available to him the claimant
(a) the offender;
(b) the government of the United States or any agency thereof, a state or any of its political subdivisions, or an instrumentality of two or more states, unless the law providing for the benefits or advantages makes them excess or secondary to benefits under this part;
(c) social security, medicare, and medicaid;
(d) workers' compensation;
(e) wage continuation programs of any employer;
(f) proceeds of a contract of insurance payable to the claimant for loss
which that was sustained because of the criminally
(g) a contract, including an insurance contract, providing hospital and other health care services or benefits for disability.
Any such A contract in this state may not provide that benefits under this part shall be are a substitute for benefits under
the contract or that the contract is a secondary source of benefits and benefits under this part are a primary source.
(h) a crime victims compensation program operated by the state in which the victim was injured or killed that compensates residents of this state injured or killed in that state; or
(i) any other third party.
(3) "Criminally injurious conduct" means conduct that:
(a) occurs or is attempted in this state OR AN ACT OF INTERNATIONAL TERRORISM, AS DEFINED IN 18 U.S.C. 2331, COMMITTED OUTSIDE OF THE UNITED STATES AGAINST A RESIDENT OF THIS STATE;
(b) results in bodily injury or death; and
(c) is punishable by fine, imprisonment, or death or would be so punishable
but for the fact except that the person
engaging in the conduct lacked capacity to commit the crime under the laws of this state; however, criminally injurious
conduct does not include conduct arising out of the ownership, maintenance, or use of a motor vehicle unless the bodily
injury or death occurred during the commission of an offense defined in Title 45 that requires the mental state of purposely
as an element of the offense or the injury or death was inflicted by the driver of a motor vehicle who is found by the
division, by a preponderance of the evidence, to have been operating the motor vehicle while under the influence, as that
term is defined in 61-8-401; or
(d) is committed in a state without a crime victims compensation program that covers a resident of this state if the conduct meets the requirements in subsections (3)(b) and (3)(c).
(4) "Dependent" means a natural person who is recognized under the law of this state to be wholly or partially dependent upon the victim for care or support and includes a child of the victim conceived before the victim's death but born after the victim's death, including a child that is conceived as a result of the criminally injurious conduct.
(5) "Division" means the division of crime control of the department of justice.
(6) "Victim" means a person who suffers bodily injury or death as a result of:
(a) criminally injurious conduct;
his the person's good faith effort to prevent criminally injurious conduct; or
his the person's good faith effort to apprehend a person reasonably suspected of engaging in criminally injurious
Section 9. Section 53-9-128, MCA, is amended to read:
"53-9-128. Compensation benefits. (1) A claimant is entitled to weekly compensation benefits when the claimant has a
total actual loss of wages due to injury as a result of criminally injurious conduct. During the time the claimant seeks
weekly benefits, the claimant, as a result of the injury, must have no reasonable prospect of being regularly employed in
the normal labor market. The weekly benefit amount is 66 2/3% of the wages received at the time of the criminally
injurious conduct, subject to a maximum of one-half the state's average weekly wage as determined in 39-51-2201. Weekly
compensation payments must be made at the end of each 2-week period. Weekly compensation payments may not be paid
for the first week after the criminally injurious conduct occurred, but if total actual loss of wages continues for 1 week,
weekly compensation payments must be paid from the date the wage loss began. Weekly compensation payments must
continue until the claimant has a reasonable prospect of being regularly employed in the normal labor market
payments are made for 26 weeks, whichever occurs first.
(2) The claimant is entitled to be reimbursed for reasonable services by a physician or surgeon, reasonable hospital services and medicines, and other treatment approved by the division for the injuries suffered due to criminally injurious conduct. UNLESS EXPRESSLY REQUESTED BY THE CLAIMANT, BENEFITS MAY NOT BE PAID UNDER THIS SUBSECTION UNTIL THE CLAIMANT HAS BEEN FULLY COMPENSATED FOR TOTAL ACTUAL WAGE LOSS AS PROVIDED IN SUBSECTION (1) OR (7).
(3) (a) The dependents of a victim who is killed as a result of criminally injurious conduct are entitled to receive, in a gross single amount payable to all dependents, weekly benefits amounting to 66 2/3% of the wages received at the time of the criminally injurious conduct causing the death, subject to a maximum of one-half the state's average weekly wage as determined in 39-51-2201. Weekly compensation payments must be made at the end of each 2-week period.
(b) Benefits under subsection (3)(a) must be paid to the spouse for the benefit of the spouse and other dependents unless the division determines that other payment arrangements should be made. If a spouse dies or remarries, benefits under subsection (3)(a) must cease to be paid to the spouse but must continue to be paid to the other dependents as long as their dependent status continues.
(4) Reasonable funeral and burial expenses of the victim, not exceeding $3,500, must be paid if all other collateral sources have properly paid expenses but have not covered all expenses.
(5) Compensation payable to a victim and all of the victim's dependents in cases of the victim's death because of injuries suffered due to an act of criminally injurious conduct may not exceed $25,000 in the aggregate.
(6) Compensation benefits are not payable for pain and suffering, inconvenience, physical impairment, or nonbodily damage.
(7) (a) A person who has suffered injury as a result of criminally injurious conduct and as a result of the injury has no
reasonable prospect of being regularly employed in the normal labor market and who was employable but was not
employed at the time of the injury may in the discretion of the division be awarded weekly compensation benefits in an
amount determined by the division not to exceed $100 per week. Weekly compensation payments must continue until the
claimant has a reasonable prospect of being regularly employed in the normal labor market
or for a shorter period as
determined by the division until payments are made for 26 weeks, whichever occurs first. The claimant must be awarded
benefits as provided in subsection (2).
(b) The dependents of a victim who is killed as a result of criminally injurious conduct and who was employable but not employed at the time of death may in the discretion of the division be awarded, in a gross single amount payable to all dependents, a sum not to exceed $100 per week, which is payable in the manner and for the period provided by subsection (3)(b) or for a shorter period as determined by the division. The claimant must be awarded benefits as provided in subsection (4).
Amounts Except for benefits paid under subsections (3), (5), and (7)(b) or other benefits paid when the victim is killed
as a result of criminally injurious conduct, amounts payable as weekly compensation may not be commuted to a lump sum
and may not be paid less frequently than every 2 weeks.
(9) (a) Subject to the limitations in subsection (9)(c), the spouse, parent, child, brother, or sister of a victim who is killed as a result of criminally injurious conduct is entitled to reimbursement for mental health treatment received as a result of the victim's death.
(b) Subject to the limitations in subsection (9)(c), the parent, brother, or sister of a minor who is a victim of criminally
injurious conduct involving a sexual
crime offense and who is not entitled to receive services under Title 41, chapter 3, is
entitled to reimbursement for mental health treatment received as a result of the crime that criminally injurious conduct.
(c) Total payments made under subsections (9)(a) and (9)(b) may not exceed $2,000 or 12 consecutive months of treatment for each person, whichever occurs first."
NEW SECTION. Section 10. Effective date. [This act] is effective July 1, 1997.