1999 Montana Legislature

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HOUSE BILL NO. 293

INTRODUCED BY J. MANGAN



A BILL FOR AN ACT ENTITLED: "AN ACT CREATING AN ENHANCED PENALTY FOR THE CRIMINAL SALE OF DANGEROUS DRUGS ON OR WITHIN 1,000 FEET OF THE PREMISES OF A MUNICIPAL HOUSING AUTHORITY HOUSING PROJECT; PROVIDING THAT IT IS NOT A DEFENSE THAT THE OFFENDER DID NOT KNOW THAT THE OFFENDER WAS WITHIN 1,000 FEET OF A HOUSING PROJECT; AND AMENDING SECTIONS 45-2-103, 45-9-101, AND 46-18-201, MCA."



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



     Section 1.  Section 45-2-103, MCA, is amended to read:

     "45-2-103.  General requirements of criminal act and mental state. (1) Except for deliberate homicide as defined in 45-5-102(1)(b) or an offense that involves absolute liability or when the statute defining the offense clearly indicates a legislative purpose to exempt an element of the offense from the requirements of this subsection, a person is not guilty of an offense unless, with respect to each element described by the statute defining the offense, a person acts while having one of the mental states of knowingly, negligently, or purposely.

     (2)  In deliberate homicide under 45-5-102(1)(b), the offender must act while having the mental state of purposely or knowingly only as to the underlying felony referred to in 45-5-102(1)(b).

     (3)  The existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense.

     (4)  If the statute defining an offense prescribes a particular mental state with respect to the offense as a whole without distinguishing among the elements of the offense, the prescribed mental state applies to each element.

     (5)  Knowledge that certain conduct constitutes an offense or knowledge of the existence, meaning, or application of the statute defining an offense is not an element of the offense unless the statute clearly defines it as an element.

     (6)  A person's reasonable belief that the person's conduct does not constitute an offense is a defense if:

     (a)  the offense is defined by an administrative regulation or order that is not known to the person and has not been published or otherwise made reasonably available to the person and if the person could not have acquired the knowledge by the exercise of due diligence pursuant to facts known to the person;

     (b)  the person acts in reliance upon a statute that later is determined to be invalid;

     (c)  the person acts in reliance upon an order or opinion of the Montana supreme court or a United States appellate court later overruled or reversed; or

     (d)  the person acts in reliance upon an official interpretation of the statute, regulation, or order defining the offense made by a public officer or agency legally authorized to interpret the statute.

     (7)  If a person's reasonable belief is a defense under subsection (6), nevertheless the person may be convicted of an included offense of which the person would be guilty if the law were as the person believed it to be.

     (8)  A defense based upon this section is an affirmative defense."



     Section 2.  Section 45-9-101, MCA, is amended to read:

     "45-9-101.  Criminal sale of dangerous drugs. (1) A person commits the offense of criminal sale of dangerous drugs if the person sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away any dangerous drug, as defined in 50-32-101.

     (2)  A person convicted of criminal sale of a narcotic drug, as defined in 50-32-101(18)(d), or an opiate, as defined in 50-32-101(19), shall be imprisoned in the state prison for a term of not less than 2 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

     (3)  A person convicted of criminal sale of a dangerous drug included in Schedule I or Schedule II pursuant to 50-32-222 or 50-32-224, except marijuana or tetrahydrocannabinol, who has a prior conviction for criminal sale of such a drug shall be imprisoned in the state prison for a term of not less than 10 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222. Upon a third or subsequent conviction for criminal sale of such a drug, the person shall be imprisoned in the state prison for a term of not less than 20 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

     (4)  A person convicted of criminal sale of dangerous drugs not otherwise provided for in subsection (2), (3), or (5), or (6) shall be imprisoned in the state prison for a term of not less than 1 year or more than life or be fined an amount of not more than $50,000, or both.

     (5)  A person who was an adult at the time of sale and who is convicted of criminal sale of dangerous drugs to a minor shall be sentenced as follows:

     (a)  If convicted pursuant to subsection (2), the person shall be imprisoned in the state prison for not less than 4 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

     (b)  If convicted of the sale of a dangerous drug included in Schedule I or Schedule II pursuant to 50-32-222 or 50-32-224 and if previously convicted of such a sale, the person shall be imprisoned in the state prison for not less than 20 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

     (c)  If convicted of the sale of a dangerous drug included in Schedule I or Schedule II pursuant to 50-32-222 or 50-32-224 and if previously convicted of two or more such sales, the person shall be imprisoned in the state prison for not less than 40 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

     (d)  If convicted pursuant to subsection (4), the person shall be imprisoned in the state prison for not less than 2 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

     (6) A person convicted of criminal sale of dangerous drugs on or within 1,000 feet of the premises of a housing project that is owned or operated by a municipal housing authority under 7-15-4454 shall be imprisoned in the state prison for a term of not less than 3 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222. It is not a defense that the person did not know that the person was within 1,000 feet of a housing project.

     (6)(7)  Practitioners and agents under their supervision acting in the course of a professional practice, as defined by 50-32-101, are exempt from this section."



     Section 3.  Section 46-18-201, MCA, is amended to read:

     "46-18-201.  Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:

     (a)  defer imposition of sentence, except as provided in 61-8-734 for sentences for driving under the influence of alcohol or drugs or as provided in 61-6-304, for a period, except as otherwise provided, not exceeding 1 year for any misdemeanor or for a period not exceeding 3 years for any felony. The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions or conditions may include:

     (i)  jail base release;

     (ii) jail time not exceeding 180 days;

     (iii) conditions for probation;

     (iv) payment of the costs of confinement;

     (v)  payment of a fine as provided in 46-18-231;

     (vi) payment of costs as provided in 46-18-232 and 46-18-233;

     (vii) payment of costs of court-appointed counsel as provided in 46-8-113;

     (viii) with the approval of the facility or program, an order that the offender be placed in a community corrections facility or program as provided in 53-30-321;

     (ix) with the approval of the prerelease center or prerelease program and confirmation by the department of corrections that space is available, an order that the offender be placed in a prerelease center or prerelease program for a period not to exceed 1 year;

     (x) community service;

     (xi) home arrest as provided in Title 46, chapter 18, part 10;

     (xii) any other reasonable conditions considered necessary for rehabilitation or for the protection of society;

     (xiii) payment of expenses for use of a judge pro tempore or special master as provided in 3-5-116; or

     (xiv) any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)(xiii).

     (b)  suspend execution of sentence for a period up to the maximum sentence allowed or for a period of 6 months, whichever is greater, for each particular offense. The sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence. Reasonable restrictions or conditions may include any of those listed in subsection (1)(a).

     (c)  impose a fine as provided by law for the offense;

     (d)  require payment of costs as provided in 46-18-232 or payment of costs of court-appointed counsel as provided in 46-8-113;

     (e)  impose a county jail or state prison sentence, as provided in Title 45, for the offense or commit the defendant to the department of corrections for a period not to exceed 5 years for placement in an appropriate correctional facility or program;

     (f)  with the approval of the facility or program, order the offender to be placed in a community corrections facility or program as provided in 53-30-321;

     (g)  with the approval of the prerelease center or prerelease program and confirmation by the department of corrections that space is available, order the offender to be placed in a prerelease center or prerelease program for a period not to exceed 1 year; or

     (h)  impose any combination of subsections (1)(b) through (1)(g).

     (2)  In addition to any penalties imposed pursuant to subsection (1), if the court finds that the victim of the offense has sustained a pecuniary loss, the court shall require payment of full restitution to the victim as provided in 46-18-241 through 46-18-249.

     (3)  If a financial obligation is imposed as a condition under subsection (1)(a), sentence may be deferred for a period not exceeding 2 years for a misdemeanor or for a period not exceeding 6 years for a felony, regardless of whether any other conditions are imposed.

     (4)  If any restrictions or conditions imposed under subsection (1)(a) or (1)(b) are violated, the court shall consider any elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit. The court shall state its reasons in the order. Credit, however, must be allowed for jail or home arrest time already served.

     (5)  Except as provided in 45-9-202 and 46-18-222, the imposition or execution of the first 2 years of a sentence of imprisonment imposed under the following sections may not be deferred or suspended: 45-5-103, 45-5-202(3) relating to aggravated assault, 45-5-302(2), 45-5-303(2), 45-5-401(2), 45-5-502(3), 45-5-503(2) and (3), 45-9-101(2), (3), and (5)(d), and (6), 45-9-102(4), and 45-9-103(2).

     (6)  Except as provided in 46-18-222, the imposition or execution of the first 10 years of a sentence of imprisonment imposed under 45-5-102 may not be deferred or suspended.

     (7)  Except as provided in 46-18-222, imposition of sentence in a felony case may not be deferred in the case of a defendant who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended.

     (8)  If the victim was less than 16 years old, the imposition or execution of the first 30 days of a sentence of imprisonment imposed under 45-5-503, 45-5-504, 45-5-505, or 45-5-507 may not be deferred or suspended. Section 46-18-222 does not apply to the first 30 days of the imprisonment.

     (9)  In imposing a sentence on a defendant convicted of a sexual or violent offense as defined in 46-23-502, the court may not waive the registration requirement provided in Title 46, chapter 23, part 5.

     (10) A person convicted of a sexual offense, as defined in 46-23-502, and sentenced to imprisonment in the state prison shall enroll in and complete the educational phase of the prison's sexual offender program. If the person is subject to the provisions of 45-5-512, the person shall also, as provided in 45-5-512, undergo medically safe medroxyprogesterone acetate treatment or its chemical equivalent or other medically safe drug treatment that reduces sexual fantasies, sex drive, or both, paid for by and for a period of time determined by the department of corrections. The period may not exceed the period of state supervision of the person.

     (11) In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program or a prerelease center or prerelease program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the court subsequently sentences the offender to a state prison, the court shall state the reasons why it did not select an alternative to imprisonment, based on the criteria contained in 46-18-225.

     (12) If a felony sentence includes probation, the department of corrections shall supervise the defendant unless the court specifies otherwise.

     (13) Except as provided in 46-18-222, a provision of this section that conflicts with 46-18-219 does not apply to a person sentenced under 46-18-219."

- END -




Latest Version of HB 293 (HB0293.01)
Processed for the Web on January 18, 1999 (12:26PM)

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