HCS HB 1451 -- CRIMINAL JUSTICE

SPONSOR:  Lipke

COMMITTEE ACTION:  Voted "do pass" by the Committee on Crime
Prevention by a vote of 10 to 0.

This substitute changes the laws regarding the criminal justice
system.  In its main provisions, the substitute:

(1)  Specifies that any person who recklessly uses or possesses
with an intent to use any drug paraphernalia to manufacture,
compound, produce, test, or analyze amphetamine or
methamphetamine or any of their analogues will be guilty of an
infraction.  Anyone who knowingly violates this provision will be
guilty of a class D felony (Section 195.233, RSMo);

(2)  Lowers the age limit for juvenile court jurisdiction for a
person who violates a state or local traffic violation from
15 l/2 to 15 years of age (Section 211.031);

(3)  Authorizes the Department of Corrections to receive and
disburse grants and federal funds (Section 217.045);

(4)  Specifies that a person who recklessly operates upon any
highway in the state a vehicle without a valid license or any
motorcycle or motortricycle without a valid license that shows
the person has successfully passed an examination for its
operation will be guilty of an infraction.  A person who
knowingly violates this provision will be guilty of a class A
misdemeanor.  Any person convicted a third or subsequent time of
operating a vehicle, motorcycle, or motortricycle without a valid
license, if the prior convictions were misdemeanors, will be
guilty of a class D felony (Section 302.020);

(5)  Specifies that any person who knowingly commits the crime of
driving while revoked will be guilty of a class A misdemeanor and
any person who recklessly violates this provision will be guilty
of an infraction.  No person who pleads guilty to or is found
guilty of a felony or misdemeanor of driving while revoked will
be granted suspended imposition of sentence or be eligible for
parole or probation until the person has served a minimum of 48
consecutive hours of imprisonment unless he or she performs at
least 10 days involving 48 hours of court-supervised community
service (Section 302.321);

(6)  Specifies that any owner of a motor vehicle registered or
required to be registered in this state who knowingly operates,
registers, or permits another person to operate the vehicle
without maintaining the required financial responsibility will be
guilty of a class C misdemeanor.  A person who recklessly
violates this provision will be guilty of an infraction (Section
303.025);

(7)  Changes the laws regarding the Missouri Securities Act
including:

(a)  Establishing the Whistleblower Program to receive and
evaluate information received from individuals voluntarily
disclosing potential securities violations while, as appropriate,
maintaining the confidentiality or anonymity of those
individuals;

(b)  Allowing the Commissioner of Securities within the Office of
the Secretary of State to pay a monetary award from the Investor
Education and Protection Fund to certain whistleblowers providing
information leading to the successful resolution of an
administrative or civil enforcement action of up to 30% of the
monetary sanctions imposed in the enforcement action.  No award
will be given to a whistleblower who is a member, officer, or
employee of any regulatory agency, who is convicted of a criminal
violation related to the action, or who fails to submit
information in an acceptable or useable manner to the
commissioner;

(c)  Requiring the commissioner to inform the public of the
program and make available a toll-free number and allowing the
commissioner to establish incentives for individuals and
companies to fully and truthfully cooperate and assist with
investigations and enforcement actions;

(d)  Requiring every broker-dealer, investment advisor, issuer,
firm, or any other person who employs an individual engaged in
the business of effecting transactions in securities or advising
others as to the value of securities to post and keep posted on
its premises, in conspicuous places where employees are employed,
a notice regarding the whistleblower program.  The information
must also be provided to all new employees;

(e)  Prohibiting any broker-dealer, investor advisor, issuer,
firm, or other person who employs an individual engaged in the
business of effecting transactions in securities or advising
others as to the value of securities from discharging, demoting,
suspending, threatening, harassing, or discriminating against a
whistleblower regarding his or her employment for lawfully
providing information to the commissioner under this program.
Any whistleblower alleging discharge or discrimination may bring
an action in the appropriate circuit court seeking necessary
relief including reinstatement of seniority; back pay with
interest; and compensation for litigation costs, expert witness
fees, and reasonable attorney fees; and

(f)  Requiring all information delivered to the commissioner by a
whistleblower to be confidential and privileged as an evidentiary
matter and to be exempt from disclosure unless and until required
to be disclosed to a defendant or respondent in connection with a
public proceeding instituted by the commissioner or any other
agency or regulatory entity or unless the commissioner deems it
necessary to protect investors (Section 409.6-601);

(8)  Allows the judge in a criminal or municipal case that is
dismissed before the defendant pleads guilty or is found guilty
to assess court costs against the defendant as specified in
Section 488.012 if the defendant consents to pay and is not
indigent and is able to pay the costs (Sections 479.260 and
488.5032);

(9)  Requires an individual who is found guilty in any criminal
case in a circuit court to be assessed a $30 surcharge and
removes the provision assessing the surcharge to an individual
who pled nolo contendere in these cases.  A $15 surcharge is
authorized in all other court proceedings in all other criminal
cases except for traffic violation cases where the defendant is
found guilty and removes the provision assessing the surcharge to
an individual who pled nolo contendere in these cases.
Currently, these funds are deposited into the General Revenue
Fund if the state's general revenue did not increase by 2% or
more in the previous fiscal year.  The substitute repeals this
provision and requires these moneys to be deposited into the DNA
Profiling Analysis Fund to be used only by the State Highway
Patrol Crime Lab (Section 488.5050);

(10)  Increases the amount of the security required on a writ of
attachment from $100 to not less than $500 (Section 491.170);

(11)  Establishes the Missouri False Claims Act which specifies
that a person will be liable to the state or relevant political
subdivision for a civil penalty if he or she:

(a)  Knowingly presents, or causes to be presented, false or
fraudulent claims for payment or approval to any officer or
employee of the state, any political subdivision, public school
district, or public charter school;

(b)  Knowingly makes, uses, or causes to be made or used, a false
record or statement to get a false or fraudulent claim paid or
approved by the government;

(c)  Conspires to defraud the government by getting a false or
fraudulent claim allowed or paid;

(d)  Has possession, custody, or control of property or money
used, or to be used, by the government and, intending to defraud
the government or willfully to conceal the property, delivers or
causes to be delivered less property than the amount for which
the person receives a certificate or receipt;

(e)  Makes or delivers a certified receipt of property used
without completely knowing that the information on the receipt is
true if the person is authorized to make or deliver the document
and intends to defraud the government;

(f)  Knowingly buys or receives as a pledge of an obligation or
debt public property from an officer, agent, or employee of the
government who lawfully may not sell or pledge the property;

(g)  Knowingly makes, uses, or causes to be made or used a false
record or statement to conceal, avoid, or decrease an obligation
to pay or transmit money or property to the government; or

(h)  Violates Section 105.452, 105.454, 576.010, 576.020,
576.030, 576.040, 576.050, or 576.080 (Sections 537.800 and
537.802);

(12)  Specifies that anyone who violates the Missouri False
Claims Act will be liable for a civil penalty of between $10,000
and $100,000 plus three times the amount of damages sustained by
the government or political subdivision or plus two times the
amount of the damages sustained if the court finds that the
person furnished the relevant entity charged with investigating
the claim with all relevant information; fully cooperated with
the investigation; and at the time of furnishing the information,
had no knowledge of an existing investigation and no criminal
prosecution, civil action, or administrative action had commenced
(Section 537.802);

(13)  Requires the Attorney General to diligently investigate any
violation of the Missouri False Claims Act and allows him or her
to bring a civil action.  Any person is allowed to bring a civil
action for himself or herself and for the government.  Procedures
are specified for bringing an action, the investigation, the
hearing, the penalties, and the procedures in special
circumstances.  The provisions of the substitute will not apply
to hospitals or medical providers governed under Section 208.164
or Sections 191.900 - 191.910 (Sections 537.804, 537.806,
537.808, and 537.810);

(14)  Specifies that no indictment or information can be deemed
invalid nor can any trial, judgment, or other proceeding be
stayed, arrested, or in any manner affected in the case of any
sexual or felony offense for the omission of the defendant's name
if the identity of the defendant is unknown at the time the
indictment or information is brought and the indictment or
information describes the defendant as a person whose name is
unknown but who has a particular DNA profile (Section 545.030);

(15)  Authorizes each prosecuting attorney to, upon agreement
with an accused or a defendant, to divert a criminal case to a
prosecution diversion program for a period of six months to two
years, allowing for any statute of limitations to be tolled for
that time.  The prosecuting attorney may divert a case out of the
criminal justice system that is nonviolent, nonsexual, and does
not involve a child victim or the possession of an unlawful
weapon and does not constitute a violation of a current condition
of probation or parole.  The prosecuting attorney is also allowed
to divert a case if he or she determines that the advantages of
utilizing prosecution diversion outweighs the advantages of
immediate court activity.  The accused or defendant must submit
to all program requirements, and any newly discovered criminal
behavior while in the program will immediately forfeit his or her
right to continued participation.  The prosecuting attorney is
authorized to establish any other criteria for the program and to
impose conditions, such as remaining free of criminal behavior,
payment of restitution, and payment of an administrative handling
fee of $100 for each case diverted upon the behavior and conduct
of the accused or defendant during participation in a program.
The administrative handling fee collected is to be deposited into
the Administrative Handling Cost Fund and expended for use by a
prosecuting or circuit attorney for the expenses of the program.
The prosecuting attorney or circuit attorney must collect an
additional $5 per case for deposit into the Missouri Office of
Prosecution Services Fund.  Any person participating in the
prosecution diversion program has the right to insist on criminal
prosecution for the offense for which he or she is accused at any
time and the right to counsel during all phases of the diversion
proceedings unless the right is knowingly and voluntarily waived
by the accused or defendant.  After successful completion of the
program and any conditions imposed to the satisfaction of the
prosecuting attorney, the person is entitled to a dismissal or
alternative disposition of the charges against him or her
(Section 557.014);

(16)  Specifies that a defendant is not entitled to an automatic
change of judge in a probation revocation proceeding (Section
559.036);

(17)  Requires any restitution ordered by the court or agreed to
by the parties to be paid through the office of the prosecuting
or circuit attorney or another entity the office has contracted
with for the collection.  When ordered by the court, interest is
allowed to be charged on any collection amount.  Any prosecuting
or circuit attorney who collects restitution will also collect
from the person paying restitution an administrative handling
cost in addition to all other costs and fees allowed by law.  The
cost will be $25 for restitution of less than $100 and $50 for
restitution between $100 and $249.  For restitution of $250 or
more, the cost will be 10% of the total restitution, not to
exceed $75.  In addition to the administrative handling cost, an
installment cost will be assessed in the amount of $2 for each
restitution payment except for the first payment.  The county
treasurer is to deposit the costs collected and the restitution
payments received into the newly created administrative handling
cost fund which is to be a separate interest-bearing
administrative handling cost fund.  The prosecuting or circuit
attorney is required to collect from the person paying
restitution an additional $5 per crime victim to whom restitution
is being paid to be deposited into the Missouri Office of
Prosecution Services Fund.  The substitute specifies how the
moneys are to be used and that the fund may be audited by the
State Auditor or the appropriate auditing agency (Section
559.100);

(18)  Specifies that a court may set an amount of restitution to
be paid by a defendant who is incarcerated with the amount being
taken from the inmate's account at the Department of Corrections.
The prosecuting attorney or circuit attorney may refer any
failure to pay restitution as a condition of conditional release
or parole to the Board of Probation and Parole within the
department for enforcement (Section 559.105);

(19)  Authorizes the department director to establish, as a
three-year pilot program, a mental health assessment process.
Upon a motion filed by the prosecutor in a criminal case, the
judge who is hearing the case may request that an offender be
placed in the department for 120 days for a mental health
assessment and for treatment if it appears that the person has a
mental disorder or illness.  The offender must qualify for
probation including community psychiatric rehabilitation
programs, and the probation must be appropriate and consistent
with public safety for the offender to be eligible for placement.
Before the judge rules on the motion, the victim must be given
the opportunity to be heard by the court.  Upon recommendation of
the court, the department must determine the offender's
eligibility for the mental health process.  Following the
assessment and treatment period, an assessment report must be
sent to the court.  The sentencing court, if appropriate, may
release the offender on probation that is supervised by a state
probation and parole officer who must work with the Department of
Mental Health to enroll eligible offenders in community
psychiatric rehabilitation programs.  A person convicted of
certain serious offenses, any offense where probation or parole
is prohibited, or who has been found to be a predatory sexual
offender is not eligible for probation.  At the end of the
three-year pilot, the directors of the departments of Corrections
and Mental Health must jointly submit recommendations by
December 31, 2013, to the Governor and General Assembly on
whether to expand the process statewide (Section 559.117);

(20)  Revises the crime of nonsupport by removing the requirement
that the parent knowingly fails to provide adequate support
without good cause and specifies that the parent commits the
crime if he or she fails to provide adequate support (Section
568.040);

(21)  Adds any elected prosecutor or assistant prosecutor with
written authorization from the elected prosecuting attorney to
the list of individuals who are exempt from certain restrictions
on the use of weapons, including the prohibition on carrying
concealed weapons (Section 571.030);

(22)  Expands the crime of making a false declaration for the
purpose of misleading a public servant in the performance of his
or her duty, a class B misdemeanor, to include when a person
provides any verbal false statement regarding his or her identity
which the person believes or knows not to be true (Section
575.060); and

(23)  Creates the Reverend Nathaniel Cole Memorial Pursuit
Reduction Grant to be administered by the Director of the
Department of Public Safety.  Any moneys appropriated or received
from federal grants, gifts, or donations to the fund will be used
to provide grants, in the amount of a 50% match, to certain
eligible urban police departments which purchase real-time
tagging and tracking pursuit management systems (Section
650.470).

The substitute contains an emergency clause for the provisions
regarding the surcharge charged to an individual found guilty in
any criminal case for deposit into the DNA Profiling Analysis
Fund and for the provisions regarding the automatic change of
judge in a probation revocation proceeding.

FISCAL NOTE:  Estimated Effect on General Revenue Fund of a cost
of More than $1,400,000 to an income of Unknown in FY 2011, FY
2012, and FY 2013.  Estimated Income on Other State Funds of
$1,400,000 in FY 2011, FY 2012, and FY 2013.

PROPONENTS:  Supporters say that the bill helps to fund a needed
part of the criminal justice system and allows victims to receive
the restitution they deserve without spending general revenue
funds.  Assessing interest on restitution is proper and
necessary.  Collection fees charged are needed to compensate
prosecution staff and pay postage costs.

Testifying for the bill were Representative Lipke; Missouri
Office of Prosecution Services; Ron Cleek, Office of the
Prosecuting Attorney of Christian County; and Michael Wright.

OPPONENTS:  Those who oppose the bill say that it is not needed
because a judge can currently require payment of restitution as a
condition of parole.  This issue should be addressed at the local
level.

Testifying against the bill was Thomas Robbins, Missouri
Association of Criminal Defense Lawyers.

OTHERS:  Others testifying on the bill clarified questions
regarding probation and parole issues.

Testifying on the bill was Department of Corrections.

Missouri House of Representatives
95th General Assembly, 2nd Regular Session
Last Updated September 14, 2010 at 3:10 pm