81st Legislative Session _ 2006

Committee: House Judiciary
Wednesday, February 08, 2006

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Gillespie
P    Haley
P    Hennies
P    Jensen
P    Michels
P    Murschel
P    O'Brien
P    Roberts
P    Sebert
P    Tornow
P    Van Norman
P    Hunt, Vice-Chair
P    Cutler, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Chair Cutler

MOTION:     TO APPROVE THE MINUTES OF FEBRUARY 6, 2006

Moved by:    Hunt
Second by:    Murschel
Action:    Prevailed by voice vote.

         HB 1119: repeal certain mandatory minimum sentences for driving under the influence, to expand those substances under which a person may be found to be under the influence, and to revise certain driving under the influence provisions for clarity and consistency.

Presented by:    Representative Tim Rounds

Proponents:    Representative Margaret Gillespie
Previous testimony was given on HB 1119

MOTION:     AMEND HB 1119

1119rf
     On page 2 of the printed bill, delete lines 17 to 24 , inclusive, and insert:

"
     Section 4. That § 32-23-2 be amended to read as follows:

     32-23-2.   If conviction for a violation of § 32-23-1 is for a first offense, such person is guilty of a Class 1 misdemeanor, and the defendant's driving privileges shall be revoked for not less than thirty days. However, the court may in its discretion issue an order upon proof of financial responsibility, pursuant to §  32-35-43.1, permitting the person to operate a motor vehicle for purposes of the person's employment , attendance at school, or attendance at court-ordered counseling programs during the hours of the day and the days of the week as set forth in the order . The court may also order the revocation of the defendant's driving privilege for a further period not to exceed one year or restrict the privilege in such manner as it sees fit for a period not to exceed one year.

     Section 5. That § 32-23-2.1 be amended to read as follows:

     32-23-2.1.   Any person convicted of a first offense pursuant to § 32-23-2 §  32-23-1 with a 0.17 percent or more by weight of alcohol in his the person's blood shall, in addition to the penalties provided in § 32-23-2, be required to undergo a court-ordered evaluation to determine if the defendant has an addiction to alcohol is chemically dependent . The cost of such evaluation shall be paid by the defendant.

     Section 6. That § 32-23-3 be amended to read as follows:

     32-23-3.   If conviction for a violation of § 32-23-1 is for a second offense, such person is guilty of a Class 1 misdemeanor, and the court shall, in pronouncing sentence, unconditionally revoke the defendant's driving privilege for a period of not less than one year. However, upon the successful completion of a court-approved alcohol treatment chemical dependency program, and proof of financial responsibility pursuant to §  32-35-43.1, the court may permit the person to drive for the purpose purposes of employment and may restrict the privilege by the imposition of such conditions as the court sees fit , attendance at school, or attendance at counseling programs . If such person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than three days, which sentence may not be suspended.

     Section 7. That § 32-23-4 be amended to read as follows:

     32-23-4.   If conviction for a violation of § 32-23-1 is for a third offense, the person is guilty of a Class 6 felony, and the court, in pronouncing sentence, shall unconditionally revoke the defendant's driving privileges for such period of time as may be determined by the court, but in no event less than one year from the date sentence is imposed or one year from the date of discharge from incarceration order that the driver's license of any person so convicted be revoked for a period of not less than one year from the date sentence is imposed or one year from the date of initial release from incarceration to parole supervision , whichever is later. If the person is convicted of driving without a license during that period, he shall be sentenced to the county jail for not less than ten days, which sentence may not be suspended. Notwithstanding §  23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to §  32-35-43.1, the court may permit the person to operate a vehicle for the purposes of employment, attendance at school, or attendance at counseling programs.

     Section 8. That § 32-23-4.3 be amended to read as follows:

     32-23-4.3.   The plea and election of method of trial by the accused shall be first taken only on the first part of the information described in § 32-23-4.2 but before a plea is made the accused shall be informed by the judge, in absence of the jury, of the contents of his the second part. There shall be entered in the minutes of the court the time and place when and where the judge so informed the accused, and like entry thereof shall be made in the judgment.

     Section 9. That § 32-23-4.4 be amended to read as follows:

     32-23-4.4.   On a finding of guilty on the first part of the information described in § 32-23-4.2 a plea shall be taken and, if necessary, an election made on the second part and a trial thereon proceeded with, and until such time no information as to the second part of the information shall may be divulged to the jury. If the accused shall have elected elects a jury trial in the second part of the information, such trial may be had to the same or another jury as the court may direct.

     Section 10. That § 32-23-4.6 be amended to read as follows:

     32-23-4.6.   If conviction for a violation of § 32-23-1 is for a fourth offense and the person has previously been convicted of a felony under § 32-23-4, the person is guilty of a Class 5 felony, and the court, in pronouncing sentence, shall unconditionally revoke the defendant's driving privileges for such period of time as may be determined by the court, but in no event less than two years from the date sentence is imposed or two years from the date of discharge from incarceration order that the driver's license of any person so convicted be revoked for a period of not less than two years from the date sentence is imposed or two years from the date of initial release from incarceration to parole supervision , whichever is later. If the person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than twenty days, which sentence may not be suspended. Notwithstanding §  23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to §  32-35-43.1, the court may permit the person to operate a vehicle for the purposes of employment, attendance at school, or attendance at counseling programs.

     Section 11. That § 32-23-4.7 be amended to read as follows:

     32-23-4.7.   If conviction for violation of § 32-23-1 is for a fifth offense, or subsequent offenses thereafter, and the person has previously been convicted of a felony under § 32-23-4, the person is guilty of a Class 4 felony and the court, in pronouncing sentencing, shall unconditionally revoke the defendant's driving privileges for such period of time as may be determined by the court, but in no event less than two years from the date sentence is imposed or two years from the date of discharge from incarceration order that the driver's license of any person so convicted be revoked for a period of not less than three years from the date sentence is imposed or three years from the date of initial release from incarceration to parole supervision , whichever is later. If the person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than twenty days, which sentence may not be suspended. Notwithstanding §  23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to §  32-35-43.1, the court may permit the person to operate a vehicle for the purposes of employment, attendance at school, or attendance at counseling programs.

     Section 12. That § 32-23-6 be amended to read as follows:

     32-23-6.   The fact that any person charged with a violation of § 32-23-1 is or has been entitled to use prescribed a drug under the laws of this state shall is not constitute a defense against any charge of violating said section §  32-23-1 .

     Section 13. That § 32-23-7 be amended to read as follows:

     32-23-7.   In any criminal prosecution for a violation of § 32-23-1 relating to driving a vehicle while under the influence of intoxicating liquor an alcoholic beverage , a violation of § 22-16-41, or a violation of § 22-16-42, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, breath, or other bodily substance gives rise to the following presumptions:

             (1)      If there was at that time five hundredths percent or less by weight of alcohol in the defendant's blood, it is presumed that the defendant was not under the influence of intoxicating liquor an alcoholic beverage ;
             (2)      If there was at that time in excess of five hundredths percent but less than eight hundredths percent by weight of alcohol in the defendant's blood, such fact does not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor an alcoholic beverage , but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;
             (3)      If there was at that time eight hundredths percent or more by weight of alcohol in the defendant's blood, it is presumed that the defendant was under the influence of intoxicating liquor an alcoholic beverage .

     Percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 1.0 cubic centimeters centimeter of whole blood or 2100 cubic centimeters of deep lung breath.

     Section 14. That § 32-23-8 be amended to read as follows:

     32-23-8.   The provisions of § 32-23-7 shall may not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor an alcoholic beverage .

     Section 15. That chapter 32-23 be amended by adding thereto a NEW SECTION to read as follows:

     Any driving permit issued by the court to any person, who has been convicted of a violation of §  32-23-1 within the last ten years or any driving permit issued pursuant to §  32-23-2, if that person had 0.17 percent or more by weight of alcohol in that person's blood, shall be conditioned on the person's total abstinence from the use of alcohol. The court shall immediately revoke the permit upon a showing of proof by a preponderance of the evidence that the person has violated this condition.

     Section 16. That § 22-16-41 be amended to read as follows:

     22-16-41.   Any person who, while under the influence of an alcoholic beverage, any controlled drug or substance, marijuana, or a combination thereof, without design to effect death, operates or drives a motor vehicle of any kind in a negligent manner and thereby causes the death of another person, including an unborn child, is guilty of vehicular homicide. Vehicular homicide is a Class 3 felony. In addition to any other penalty prescribed by law, the court may also order that the driver's license of any person convicted of vehicular homicide be revoked for such period of time as may be determined by the court shall order that the driver's license of any person convicted of vehicular homicide be revoked for a period of not less than ten years from the date sentence is imposed or ten years from the date of initial release from incarceration to parole supervision, whichever is later .

     Section 17. That § 22-18-36 be amended to read as follows:

     22-18-36.   Any person who, while under the influence of an alcoholic beverage, any controlled drug or substance, marijuana, or a combination thereof, without design to effect serious bodily injury, operates or drives a motor vehicle of any kind in a negligent manner and thereby causes the serious bodily injury of another person, including an unborn child, is guilty of vehicular battery. Vehicular battery is a Class 4 felony. In addition to any other penalty prescribed by law, the court may also order that the driver's license of any person convicted of vehicular battery be revoked for a period of two years subsequent to release from incarceration shall order that the driver's license of any person convicted of vehicular battery be revoked for a period of not less than three years from the date sentence is imposed or three years from the date of initial release from incarceration to parole supervision, whichever is later . ".


     On page 3 , delete lines 1 to 24 , inclusive.

     On page 4 , delete lines 1 to 24 , inclusive.

     On page 5 , delete lines 1 to 24 , inclusive.

     On page 6 , delete lines 1 to 24 , inclusive.

     On page 7 , delete lines 1 to 9 , inclusive.

Moved by:    Gillespie
Second by:    Hennies
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1119 AS AMENDED

Moved by:    Michels
Second by:    Hunt
Action:    Prevailed by roll call vote.(12-1-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Roberts, Sebert, Tornow, Hunt, Cutler

Voting No:    Van Norman

         HB 1180: prohibit certain acts of child neglect, abuse, and endangerment and to provide penalties therefor.

Presented by:    Representative Sean O'Brien
Proponents:    Dr. Edward Mailloux, self, Rapid City
        Clyde Calhoun, self, Brookings (telephone)
        Susan Randall, SD Voices For Children
        Ann Holzhauser, Department of Social Services

Opponents:    Deanne Farrar, Christian Science Comm. On Publication, Rapid City
        Rita Houglum, Eagle Forum

MOTION:     AMEND HB 1180

1180ra
     On page 1, line 8 of the printed bill, after " age, " insert "if the parent or guardian is reasonably able to make the provision and".

Moved by:    Gillespie
Second by:    Hennies
Action:    Prevailed by roll call vote.(7-6-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Sebert, Tornow, Van Norman, Hunt

Voting No:    Jensen, Michels, Murschel, O'Brien, Roberts, Cutler

MOTION:     DO PASS HB 1180 AS AMENDED

Moved by:    Hennies
Second by:    Haley
Action:    Was not acted on.

MOTION:     SUBSTITUTE MOTION AMEND HB 1180

1180rb
     On page 1 of the printed bill, delete lines 4 to 10 , inclusive.

Moved by:    Tornow
Second by:    Hennies
Action:    Failed by voice vote.

MOTION:     DO PASS HB 1180 AS AMENDED

Moved by:    Hennies
Second by:    Haley
Action:    Prevailed by roll call vote.(9-4-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Roberts, Cutler

Voting No:    Sebert, Tornow, Van Norman, Hunt

         HB 1203: define marital and nonmarital property for the purposes of the division of property between parties at divorce.

Presented by:    Representative Margaret Gillespie
Previous testimony was taken on HB 1203

MOTION:     AMEND HB 1203

1203ra
     On page 1, line 11 of the printed bill, after " §  25-4-44, " insert "there is a rebuttable presumption that".

Moved by:    Gillespie
Second by:    Van Norman
Action:    Prevailed by voice vote.

MOTION:     AMEND HB 1203

1203rc
     On page 1, line 8 of the printed bill, after " parties. " insert " The court may consider the nonmarital property when determining an equitable division of property, the need of a spouse for support, and the ability to provide support. ".

Moved by:    Gillespie
Second by:    Van Norman
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1203 AS AMENDED

Moved by:    Gillespie
Second by:    Hennies
Action:    Prevailed by roll call vote.(13-0-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Roberts, Sebert, Tornow, Van Norman, Hunt, Cutler

         HB 1219: revise the advice that a law enforcement officer must give any person arrested for driving under influence.


Presented by:    Representative Mike Vehle

MOTION:     AMEND HB 1219

1219fa
     On page 2, line 8 of the printed bill, delete " shall may " and insert "shall".

Moved by:    Gillespie
Second by:    Hennies
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1219 AS AMENDED

Moved by:    Hennies
Second by:    Sebert
Action:    Prevailed by roll call vote.(12-0-1-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Murschel, O'Brien, Roberts, Sebert, Tornow, Van Norman, Hunt, Cutler

Excused:    Michels

         HB 1152: establish damage claims procedures for certain claims against construction professionals.

Presented by:    Greg Brewers, AGC - Building Chapter
Opponents:    David Hewett, SD Assn. Of Healthcare Organizations
        Deb Fischer Clemens, Avera Health
        Roger Tellinghuisen, SD Trial Lawyers Association
        Tom Barnett, State Bar Association of South Dakota
Previous testimony was taken on HB 1152

MOTION:     AMEND HB 1152

1152tb
     On the printed bill, delete everything after the enacting clause and insert:

"

     Section 1. Unless the applicable statute of limitations necessitates the filing of a civil action in a shorter period of time, a claimant alleging a construction defect shall give written notice of the defect to the construction professional and the opportunity to inspect the alleged defect at least thirty days before the filing of a civil action.

     Section 2. In any action against a construction professional alleging personal injury or death as a result of a construction defect, the total noneconomic damages that may be awarded may not exceed the sum of five hundred thousand dollars for each person injured. There is no limitation on the amount of special damages that may be awarded. This section applies only to causes of action arising from injuries or death occurring after July 1, 2006."

Moved by:    Hunt
Second by:    Roberts
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1152 AS AMENDED

Moved by:    Sebert
Second by:    Roberts
Action:    Was not acted on.

MOTION:     SUBSTITUTE MOTION DEFER HB 1152 TO THE 36TH LEGISLATIVE DAY

Moved by:    Hennies
Second by:    O'Brien
Action:    Prevailed by roll call vote.(10-3-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Tornow, Hunt, Cutler

Voting No:    Roberts, Sebert, Van Norman

         HB 1150: revise certain provisions relating to controlled drugs and substances.

Presented by:    Representative Sean O'Brien
Opponents:    Neil Fulton, Governor's Office
        Larry Long, Attorney General

MOTION:     DO PASS HB 1150

Moved by:    O'Brien
Second by:    Hennies
Action:    Prevailed by roll call vote.(8-4-1-0)

Voting Yes:    Haley, Hennies, Michels, Murschel, O'Brien, Roberts, Sebert, Cutler

Voting No:    Gillespie, Jensen, Tornow, Hunt

Excused:    Van Norman

         HB 1230: provide for improvements in the implementation of the Indian Child Welfare Act.

Presented by:    Representative Thomas Van Norman
Proponents:    Representative Jim Bradford
        Senator Theresa Two Bulls
        Jennifer Ring, ACLU of The Dakotas
Opponents:    Deb Bowman, Dept of Social Services

MOTION:     DEFER HB 1230 TO THE 36TH LEGISLATIVE DAY

Moved by:    Sebert
Second by:    Tornow
Action:    Prevailed by roll call vote.(9-4-0-0)

Voting Yes:    Gillespie, Hennies, Michels, Murschel, O'Brien, Sebert, Tornow, Hunt, Cutler

Voting No:    Haley, Jensen, Roberts, Van Norman

         HB 1163: revise certain provisions regarding court suspensions and revocations of driver licenses.

Presented by:    Representative Sean O'Brien
Opponents:    Neil Fulton, Governor's Office

MOTION:     AMEND HB 1163

1163ra
     On page 6 of the printed bill, delete lines 12 to 17 , inclusive.

Moved by:    Michels
Second by:    Hunt
Action:    Failed by roll call vote.(5-8-0-0)

Voting Yes:    Gillespie, Jensen, Michels, Tornow, Hunt


Voting No:    Haley, Hennies, Murschel, O'Brien, Roberts, Sebert, Van Norman, Cutler

MOTION:     AMEND HB 1163

1163rb
     On page 1, line 8 of the printed bill, delete " one hundred eighty thirty " and insert "one hundred eighty".

     On page 1 , delete lines 9 to 13 , inclusive.

     On page 1 , line 14, after "Upon a" delete " second third " and insert "second".

     On page 1 , line 14, after " or a " delete " second third " and insert "second".

     On page 2 , line 2, delete " , if such third or subsequent conviction or " .

     On page 2 , line 3, delete " adjudication occurred within four years of the previous conviction or adjudication, " .

Moved by:    Hunt
Second by:    Michels
Action:    Failed by roll call vote.(3-10-0-0)

Voting Yes:    Michels, Tornow, Hunt

Voting No:    Gillespie, Haley, Hennies, Jensen, Murschel, O'Brien, Roberts, Sebert, Van Norman, Cutler

MOTION:     DO PASS HB 1163

Moved by:    O'Brien
Second by:    Sebert
Action:    Prevailed by roll call vote.(10-3-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Murschel, O'Brien, Roberts, Sebert, Van Norman, Cutler

Voting No:    Michels, Tornow, Hunt

         HB 1231: require certain corrections statistics related to race to be collected and maintained.


Presented by:    Representative Thomas Van Norman
Proponents:    Representative Jim Bradford
        Senator Theresa Two Bulls
        Jennifer Ring, ACLU of The Dakotas
Opponents:    Laurie Feiler, Department of Corrections

MOTION:     DEFER HB 1231 TO THE 36TH LEGISLATIVE DAY

Moved by:    Hennies
Second by:    Tornow
Action:    Prevailed by roll call vote.(8-5-0-0)

Voting Yes:    Gillespie, Hennies, Jensen, Michels, Murschel, Sebert, Tornow, Hunt

Voting No:    Haley, O'Brien, Roberts, Van Norman, Cutler

         SB 149: create community safety zones, to prohibit certain persons from residing or loitering in community safety zones, to provide penalties for violations thereof, and to declare an emergency.

Presented by:    Laurie Feiler, Department of Corrections
Proponents:    Representative Joel Dykstra
        Jeff Dooley, self, Dakota Dunes

MOTION:     AMEND SB 149

149rc
     On page 1, line 6 of the Senate Judiciary Committee engrossed bill, after " within " insert "one thousand".

     On page 1 , line 7, after " playground, " insert "daycare center,".

     On page 2 , line 5, after " 24B " insert "and whose crime involved a minor victim".

     On page 4 , line 5, delete " clear and convincing " and insert "conclusive".

Moved by:    Tornow
Second by:    Hunt
Action:    Prevailed by voice vote.

The Chair deferred SB 149 until Friday, February 10, 2006 .

         HB 1066: prohibit certain sex offenders from residing within a specified distance from certain places where children are present.

Opponents:    Chuck Schroyer, SD States Attorneys Assn.
        Laurie Feiler, Department of Corrections
Previous testimony was taken on HB 1066

MOTION:     DEFER HB 1066 TO THE 36TH LEGISLATIVE DAY

Moved by:    Tornow
Second by:    Sebert
Action:    Prevailed by roll call vote.(13-0-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Roberts, Sebert, Tornow, Van Norman, Hunt, Cutler

MOTION:     ADJOURN

Moved by:    Hunt
Second by:    Hennies
Action:    Prevailed by voice vote.

Diane Mellan

____________________________

Committee Secretary
Joni M. Cutler, Chair

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