Bill Text: AZ HB2353 | 2011 | Fiftieth Legislature 1st Regular | Engrossed
Bill Title: Sentencing; dangerous offenses; probation
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-04-13 - Governor Signed [HB2353 Detail]
Download: Arizona-2011-HB2353-Engrossed.html
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Senate Engrossed House Bill |
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State of Arizona House of Representatives Fiftieth Legislature First Regular Session 2011
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HOUSE BILL 2353 |
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AN ACT
amending sections 13-105 and 13-708, Arizona Revised Statutes; repealing sections 13‑709.01, 13-709.03, 13-709.04 and 13-709.05, Arizona Revised Statutes; amending sections 13-709.02 and 13-907, Arizona Revised Statutes; amending section 13-1204, Arizona Revised Statutes, as amended by laws 2010, chapter 97, section 1 and chapter 276, section 2; repealing section 13-1204, Arizona Revised Statutes, as amended by Laws 2010, chapter 241, section 1 and chapter 276, section 2; amending sections 13-1207, 13-1212, 13-1402, 13-1403, 13‑2308.01, 13-2312, 13-3101, 13-3407, 13-3411, 13-3601, 13-3961, 28-1387 and 31-418, Arizona Revised Statutes; repealing title 31, chapter 3, article 4, Arizona Revised Statutes; amending sections 41-1604.10 and 41-1604.13, Arizona Revised Statutes; relating to postconviction matters.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-105, Arizona Revised Statutes, is amended to read:
13-105. Definitions
In this title, unless the context otherwise requires:
1. "Absconder" means a probationer who has moved from the probationer's primary residence without permission of the probation officer, who cannot be located within ninety days of the previous contact and against whom a petition to revoke has been filed in the superior court alleging that the probationer's whereabouts are unknown. A probationer is no longer deemed an absconder when the probationer is voluntarily or involuntarily returned to probation service.
2. "Act" means a bodily movement.
3. "Benefit" means anything of value or advantage, present or prospective.
4. "Calendar year" means three hundred sixty‑five days' actual time served without release, suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis.
5. "Community supervision" means that portion of a felony sentence that is imposed by the court pursuant to section 13‑603, subsection I and that is served in the community after completing a period of imprisonment or served in prison in accordance with section 41‑1604.07.
6. "Conduct" means an act or omission and its accompanying culpable mental state.
7. "Crime" means a misdemeanor or a felony.
8. "Criminal street gang" means an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act and that has at least one individual who is a criminal street gang member.
9. "Criminal street gang member" means an individual to whom at least two of the following seven criteria that indicate criminal street gang membership apply:
(a) Self‑proclamation.
(b) Witness testimony or official statement.
(c) Written or electronic correspondence.
(d) Paraphernalia or photographs.
(e) Tattoos.
(f) Clothing or colors.
(g) Any other indicia of street gang membership.
10. "Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence as those terms are defined in this paragraph:
(a) "Intentionally" or "with the intent to" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.
(b) "Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
(c) "Recklessly" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.
(d) "Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
11. "Dangerous drug" means dangerous drug as defined in section 13‑3401.
12. "Dangerous instrument" means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.
13. "Dangerous offense" means an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.
14. "Deadly physical force" means force that is used with the purpose of causing death or serious physical injury or in the manner of its use or intended use is capable of creating a substantial risk of causing death or serious physical injury.
15. "Deadly weapon" means anything designed for lethal use, including a firearm.
16. "Economic loss" means any loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses that would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.
17. "Enterprise" includes any corporation, association, labor union or other legal entity.
18. "Felony" means an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state.
19. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will or is designed to or may readily be converted to expel a projectile by the action of expanding gases, except that it does not include a firearm in permanently inoperable condition.
20. "Government" means the state, any political subdivision of the state or any department, agency, board, commission, institution or governmental instrumentality of or within the state or political subdivision.
21. "Government function" means any activity that a public servant is legally authorized to undertake on behalf of a government.
22. "Historical prior felony conviction" means:
(a) Any prior felony conviction for which the offense of conviction either:
(i) Mandated a term of imprisonment except for a violation of chapter 34 of this title involving a drug below the threshold amount.
(ii) Involved the intentional or knowing infliction of serious physical injury.
(iii) Involved the use or exhibition of a deadly weapon or dangerous instrument.
(ii) Involved a dangerous offense.
(iv) (iii) Involved the illegal control of a criminal enterprise.
(v) (iv) Involved aggravated driving under the influence of intoxicating liquor or drugs.
(vi) (v) Involved any dangerous crime against children as defined in section 13‑705.
(b) Any class 2 or 3 felony, except the offenses listed in subdivision (a) of this paragraph, that was committed within the ten years immediately preceding the date of the present offense. Any time spent on absconder status while on probation, on escape status or incarcerated is excluded in calculating if the offense was committed within the preceding ten years. If a court determines a person was not on absconder status while on probation or escape status, that time is not excluded. For the purposes of this subdivision, "escape" means:
(i) A departure from custody or from a juvenile secure care facility, a juvenile detention facility or an adult correctional facility in which the person is held or detained, with knowledge that the departure is not permitted, or the failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period.
(ii) A failure to report as ordered to custody or detention to begin serving a term of incarceration.
(c) Any class 4, 5 or 6 felony, except the offenses listed in subdivision (a) of this paragraph, that was committed within the five years immediately preceding the date of the present offense. Any time spent on absconder status while on probation, on escape status or incarcerated is excluded in calculating if the offense was committed within the preceding five years. If a court determines a person was not on absconder status while on probation or escape status, that time is not excluded. For the purposes of this subdivision, "escape" has the same meaning prescribed in subdivision (b) of this paragraph.
(d) Any felony conviction that is a third or more prior felony conviction.
23. "Intoxication" means any mental or physical incapacity resulting from use of drugs, toxic vapors or intoxicating liquors.
24. "Misdemeanor" means an offense for which a sentence to a term of imprisonment other than to the custody of the state department of corrections is authorized by any law of this state.
25. "Narcotic drug" means narcotic drugs as defined in section 13‑3401.
26. "Offense" or "public offense" means conduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred or by any law, regulation or ordinance of a political subdivision of that state and, if the act occurred in a state other than this state, it would be so punishable under the laws, regulations or ordinances of this state or of a political subdivision of this state if the act had occurred in this state.
27. "Omission" means the failure to perform an act as to which a duty of performance is imposed by law.
28. "Peace officer" means any person vested by law with a duty to maintain public order and make arrests and includes a constable.
29. "Person" means a human being and, as the context requires, an enterprise, a public or private corporation, an unincorporated association, a partnership, a firm, a society, a government, a governmental authority or an individual or entity capable of holding a legal or beneficial interest in property.
30. "Petty offense" means an offense for which a sentence of a fine only is authorized by law.
31. "Physical force" means force used upon or directed toward the body of another person and includes confinement, but does not include deadly physical force.
32. "Physical injury" means the impairment of physical condition.
33. "Possess" means knowingly to have physical possession or otherwise to exercise dominion or control over property.
34. "Possession" means a voluntary act if the defendant knowingly exercised dominion or control over property.
35. "Preconviction custody" means the confinement of a person in a jail in this state or another state after the person is arrested for or charged with a felony offense.
36. "Property" means anything of value, tangible or intangible.
37. "Public servant":
(a) Means any officer or employee of any branch of government, whether elected, appointed or otherwise employed, including a peace officer, and any person participating as an advisor or consultant or otherwise in performing a governmental function.
(b) Does not include jurors or witnesses.
(c) Includes those who have been elected, appointed, employed or designated to become a public servant although not yet occupying that position.
38. "Serious physical injury" includes physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.
39. "Unlawful" means contrary to law or, where the context so requires, not permitted by law.
40. "Vehicle" means a device in, upon or by which any person or property is, may be or could have been transported or drawn upon a highway, waterway or airway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.
41. "Voluntary act" means a bodily movement performed consciously and as a result of effort and determination.
42. "Voluntary intoxication" means intoxication caused by the knowing use of drugs, toxic vapors or intoxicating liquors by a person, the tendency of which to cause intoxication the person knows or ought to know, unless the person introduces them pursuant to medical advice or under such duress as would afford a defense to an offense.
Sec. 2. Section 13-708, Arizona Revised Statutes, is amended to read:
13-708. Offenses committed while released from confinement
A. A person who is convicted of any felony involving a dangerous offense that is committed while the person is on probation for a conviction of a felony offense or parole, work furlough, community supervision or any other release or has escaped from confinement for conviction of a felony offense shall be sentenced to imprisonment for not less than the presumptive sentence authorized under this chapter and is not eligible for suspension or commutation or release on any basis until the sentence imposed is served.
B. A person who is convicted of a dangerous offense that is committed while the person is on release or has escaped from confinement for a conviction of a serious offense as defined in section 13‑706, an offense resulting in serious physical injury or an offense involving the use or exhibition of a deadly weapon or dangerous instrument shall be sentenced to the maximum sentence authorized under this chapter and is not eligible for suspension or commutation or release on any basis until the sentence imposed is served. If the court finds that at least two substantial aggravating circumstances listed in section 13‑701, subsection D apply, the court may increase the maximum sentence authorized under this chapter by up to twenty‑five per cent. A sentence imposed pursuant to this subsection shall revoke the convicted person's release if the person was on release and shall be consecutive to any other sentence from which the convicted person had been temporarily released or had escaped, unless the sentence from which the convicted person had been paroled or placed on probation was imposed by a jurisdiction other than this state.
C. A person who is convicted of any felony offense that is not included in subsection A or B of this section and that is committed while the person is on probation for a conviction of a felony offense or parole, work furlough, community supervision or any other release or escape from confinement for conviction of a felony offense shall be sentenced to a term of not less than the presumptive sentence authorized for the offense and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted. The release provisions prescribed by this section shall not be substituted for any penalties required by the substantive offense or provision of law that specifies a later release or completion of the sentence imposed before release. A sentence imposed pursuant to this subsection shall revoke the convicted person's release if the person was on release and shall be consecutive to any other sentence from which the convicted person had been temporarily released or had escaped, unless the sentence from which the convicted person had been paroled or placed on probation was imposed by a jurisdiction other than this state. For the purposes of this subsection, "substantive offense" means the felony, misdemeanor or petty offense that the trier of fact found beyond a reasonable doubt the defendant committed. Substantive offense does not include allegations that, if proven, would enhance the sentence of imprisonment or fine to which the defendant would otherwise be subject.
D. A person who is convicted of committing any felony offense that is committed while the person is released on bond or on the person's own recognizance on a separate felony offense or while the person is escaped from preconviction custody for a separate felony offense shall be sentenced to a term of imprisonment two years longer than would otherwise be imposed for the felony offense committed while on release. The additional sentence imposed under this subsection is in addition to any enhanced punishment that may be applicable under section 13‑703, section 13‑704, section 13‑709.01, subsection A 13-1204, subsection C or section 13‑709.02, subsection C. The person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis, except as specifically authorized by section 31‑233, subsection A or B, until the two years are served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted. The penalties prescribed by this subsection shall be substituted for the penalties otherwise authorized by law if the allegation that the person committed a felony while released on bond or on the person's own recognizance or while escaped from preconviction custody is charged in the indictment or information and admitted or found by the court. The release provisions prescribed by this subsection shall not be substituted for any penalties required by the substantive offense or provision of law that specifies a later release or completion of the sentence imposed before release. The court shall allow the allegation that the person committed a felony while released on bond or on the person's own recognizance on a separate felony offense or while escaped from preconviction custody on a separate felony offense at any time before the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the person was in fact prejudiced by the untimely filing and states the reasons for these findings. The allegation that the person committed a felony while released on bond or on the person's own recognizance or while escaped from preconviction custody shall not be read to the jury. For the purposes of this subsection, "substantive offense" means the felony offense that the trier of fact found beyond a reasonable doubt the person committed. Substantive offense does not include allegations that, if proven, would enhance the sentence of imprisonment or fine to which the person otherwise would be subject.
Sec. 3. Repeal
Sections 13-709.01, 13-709.03, 13-709.04 and 13-709.05, Arizona Revised Statutes, are repealed.
Sec. 4. Section 13-709.02, Arizona Revised Statutes, is amended to read:
13-709.02. Offenses committed with intent to promote, further or assist a criminal street gang
A. If a person is convicted of a violation of section 13‑2308.01 and the court finds at least one aggravating circumstance listed in section 13‑701, subsection D, the court may impose a life sentence. If the court imposes a life sentence, the court may order that the defendant not be released on any basis for the remainder of the defendant's natural life. If the court does not sentence the defendant to natural life, the defendant shall not be released on any basis until the person has served twenty-five calendar years.
B. A person who is convicted of a knowing violation of section 13‑2312, subsection C is not eligible for probation, pardon, suspension of sentence or release on any basis until the person has served the sentence imposed by the court or the sentence is commuted.
C. A person who is convicted of committing any felony offense with the intent to promote, further or assist any criminal conduct by a criminal street gang shall not be eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted. The presumptive, minimum and maximum sentence for the offense shall be increased by three years if the offense is a class 4, 5 or 6 felony or shall be increased by five years if the offense is a class 2 or 3 felony. The additional sentence imposed pursuant to this subsection section is in addition to any enhanced sentence that may be applicable.
Sec. 5. Section 13-907, Arizona Revised Statutes, is amended to read:
13-907. Setting aside judgment of convicted person on discharge; application; release from disabilities; exceptions
A. Except as otherwise provided in subsection D of this section, every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge, justice of the peace or magistrate's successor in office to have the judgment of guilt set aside. The convicted person shall be informed of this right at the time of discharge.
B. The application to set aside the judgment may be made by The convicted person or by, if authorized in writing, the convicted person's attorney or probation officer authorized in writing may apply to set aside the judgment.
C. If the judge, justice of the peace or magistrate grants the application, the judge, justice of the peace or magistrate shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction other than except those imposed by:
1. The department of transportation pursuant to section 28‑3304, 28‑3306, 28‑3307, 28‑3308 or 28-3319, except that the conviction may be used as a conviction if such the conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by the state or any of its subdivisions for any offense or used by the department of transportation in enforcing section 28‑3304, 28‑3306, 28‑3307, 28‑3308 or 28-3319 as if the judgment of guilt had not been set aside.
2. The game and fish commission pursuant to section 17-314 or 17-340.
D. This section does not apply to a person who was convicted of a criminal offense:
1. Involving the infliction of serious physical injury.
2. Involving the use or exhibition of a deadly weapon or dangerous instrument.
1. Involving a dangerous offense.
3. 2. For which the person is required or ordered by the court to register pursuant to section 13‑3821.
4. 3. For which there has been a finding of sexual motivation pursuant to section 13‑118.
5. 4. In which the victim is a minor under fifteen years of age.
6. 5. In violation of section 28‑3473, any local ordinance relating to stopping, standing or operation of a vehicle or title 28, chapter 3, except a violation of section 28‑693 or any local ordinance relating to the same subject matter as section 28‑693.
Sec. 6. Section 13-1204, Arizona Revised Statutes, as amended by Laws 2010, chapter 97, section 1 and chapter 276, section 2, is amended to read:
13-1204. Aggravated assault; classification; definition
A. A person commits aggravated assault if the person commits assault as prescribed by section 13‑1203 under any of the following circumstances:
1. If the person causes serious physical injury to another.
2. If the person uses a deadly weapon or dangerous instrument.
3. If the person commits the assault by any means of force that causes temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part.
4. If the person commits the assault while the victim is bound or otherwise physically restrained or while the victim's capacity to resist is substantially impaired.
5. If the person commits the assault after entering the private home of another with the intent to commit the assault.
6. If the person is eighteen years of age or older and commits the assault on a child who is minor under fifteen years of age or under.
7. If the person commits assault as prescribed by section 13‑1203, subsection A, paragraph 1 or 3 and the person is in violation of an order of protection issued against the person pursuant to section 13‑3602 or 13‑3624.
8. If the person commits the assault knowing or having reason to know that the victim is any of the following:
(a) A peace officer, or a person summoned and directed by the officer while engaged in the execution of any official duties.
(b) A constable, or a person summoned and directed by the constable while engaged in the execution of any official duties.
(c) A firefighter, fire investigator, fire inspector, emergency medical technician or paramedic engaged in the execution of any official duties, or a person summoned and directed by such individual while engaged in the execution of any official duties.
(d) A teacher or other person employed by any school and the teacher or other employee is on the grounds of a school or grounds adjacent to the school or is in any part of a building or vehicle used for school purposes, any teacher or school nurse visiting a private home in the course of the teacher's or nurse's professional duties or any teacher engaged in any authorized and organized classroom activity held on other than school grounds.
(e) A health care practitioner who is certified or licensed pursuant to title 32, chapter 13, 15, 17 or 25, or a person summoned and directed by the licensed health care practitioner while engaged in the person's professional duties. This subdivision does not apply if the person who commits the assault is seriously mentally ill, as defined in section 36‑550, or is afflicted with alzheimer's disease or related dementia.
(f) A prosecutor.
(g) A code enforcement officer as defined in section 39-123.
(h) A state or municipal park ranger.
(i) A public defender.
9. If the person knowingly takes or attempts to exercise control over any of the following:
(a) A peace officer's or other officer's firearm and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection and is engaged in the execution of any official duties.
(b) Any weapon other than a firearm that is being used by a peace officer or other officer or that the officer is attempting to use, and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection and is engaged in the execution of any official duties.
(c) Any implement that is being used by a peace officer or other officer or that the officer is attempting to use, and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection and is engaged in the execution of any official duties. For the purposes of this subdivision, "implement" means an object that is designed for or that is capable of restraining or injuring an individual. Implement does not include handcuffs.
10. If the person meets both of the following conditions:
(a) Is imprisoned or otherwise subject to the custody of any of the following:
(i) The state department of corrections.
(ii) The department of juvenile corrections.
(iii) A law enforcement agency.
(iv) A county or city jail or an adult or juvenile detention facility of a city or county.
(v) Any other entity that is contracting with the state department of corrections, the department of juvenile corrections, a law enforcement agency, another state, any private correctional facility, a county, a city or the federal bureau of prisons or other federal agency that has responsibility for sentenced or unsentenced prisoners.
(b) Commits an assault knowing or having reason to know that the victim is acting in an official capacity as an employee of any of the entities listed in subdivision (a) of this paragraph.
B. A person commits aggravated assault if the person commits assault by either intentionally, knowingly or recklessly causing any physical injury to another person, intentionally placing another person in reasonable apprehension of imminent physical injury or knowingly touching another person with the intent to injure the person, and both of the following occur:
1. The person intentionally or knowingly impedes the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth either manually or through the use of an instrument.
2. Any of the circumstances exists that are set forth in section 13‑3601, subsection A, paragraph 1, 2, 3, 4, 5 or 6.
C. A person who is convicted of intentionally or knowingly committing aggravated assault on a peace officer while the officer is engaged in the execution of any official duties pursuant to subsection A, paragraph 1 or 2 of this section shall be sentenced to imprisonment for not less than the presumptive sentence authorized under chapter 7 of this title and is not eligible for suspension of sentence, commutation or release on any basis until the sentence imposed is served.
C. D. Except pursuant to subsections D and E and F of this section, aggravated assault pursuant to subsection A, paragraph 1 or 2 or paragraph 9, subdivision (a) of this section is a class 3 felony except if the victim is under fifteen years of age in which case it is a class 2 felony punishable pursuant to section 13-705. Aggravated assault pursuant to subsection A, paragraph 3 or subsection B of this section is a class 4 felony. Aggravated assault pursuant to subsection A, paragraph 9, subdivision (b) or paragraph 10 of this section is a class 5 felony. Aggravated assault pursuant to subsection A, paragraph 4, 5, 6, or 7, paragraph or 8, subdivision (b), (c), (d), (e), or (f) or paragraph 9, subdivision (c) of this section is a class 6 felony.
D. E. Aggravated assault pursuant to subsection A, paragraph 1 or 2 of this section committed on a peace officer while the officer is engaged in the execution of any official duties is a class 2 felony. Aggravated assault pursuant to subsection A, paragraph 3 of this section committed on a peace officer while the officer is engaged in the execution of any official duties is a class 3 felony. Aggravated assault pursuant to subsection A, paragraph 8, subdivision (a) of this section committed on a peace officer while the officer is engaged in the execution of any official duties is a class 5 felony unless the assault results in any physical injury to the peace officer while the officer is engaged in the execution of any official duties, in which case it is a class 4 felony.
E. F. Aggravated assault pursuant to:
1. Subsection A, paragraph 1 or 2 of this section is a class 2 felony if committed on a prosecutor.
2. Subsection A, paragraph 3 of this section is a class 3 felony if committed on a prosecutor.
3. Subsection A, paragraph 8, subdivision (f) of this section is a class 5 felony if the assault results in physical injury to a prosecutor.
F. G. For the purposes of this section, "prosecutor" means a county attorney, a municipal prosecutor or the attorney general and includes an assistant or deputy county attorney, municipal prosecutor or attorney general.
Sec. 7. Repeal
Section 13-1204, Arizona Revised Statutes, as amended by Laws 2010, chapter 241, section 1 and chapter 276, section 2, is repealed.
Sec. 8. Section 13-1207, Arizona Revised Statutes, is amended to read:
13-1207. Prisoners who commit assault with intent to incite to riot or participate in riot; classification
A. A person, while in the custody of the state department of corrections or a county or city jail, who commits assault upon on another person with the intent to incite to riot or who participates in a riot is guilty of a class 2 felony and section 13‑709.01, subsection B applies to the sentence imposed.
B. A person who is convicted of a violation of this section shall not be eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the sentence imposed by the court has been served or commuted and the sentence shall be consecutive to any other sentence presently being served by the convicted person.
Sec. 9. Section 13-1212, Arizona Revised Statutes, is amended to read:
13-1212. Prisoner assault with bodily fluids; liability for costs; classification; definition
A. A prisoner commits prisoner assault with bodily fluids if the prisoner throws or projects any bodily fluid at or onto a correctional facility employee or private prison security officer who the prisoner knows or reasonably should know is an employee of a correctional facility or is a private prison security officer.
B. A prisoner who is convicted of a violation of this section is liable for any costs incurred by the correctional facility employee or private prison security officer, including costs incurred for medical expenses or cleaning uniforms.
C. The state department of corrections shall adopt rules for the payment of costs pursuant to subsection B of this section. Monies in the prisoner's trust fund or retention account established by the correctional facility in which the prisoner is incarcerated may be used to pay the costs pursuant to subsection B of this section.
D. A prisoner who violates this section is guilty of a class 6 felony and the sentence imposed for a violation of this section shall run consecutively pursuant to section 13‑709.01, subsection C to any sentence of imprisonment for which the prisoner was confined or to any term of community supervision, probation, parole, work furlough or other release from confinement.
E. For the purposes of this section, "bodily fluids" means saliva, blood, seminal fluid, urine or feces.
Sec. 10. Section 13-1402, Arizona Revised Statutes, is amended to read:
13-1402. Indecent exposure; exception; classification
A. A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether the other person, as a reasonable person, would be offended or alarmed by the act.
B. Indecent exposure does not include an act of breast-feeding by a mother.
C. Indecent exposure to a person who is fifteen or more years of age is a class 1 misdemeanor. Indecent exposure to a person who is under fifteen years of age is a class 6 felony.
D. A person who is convicted of a felony violation of this section and who has two or more historical prior felony convictions for a violation of this section or section 13‑1403 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age shall be sentenced pursuant to section 13‑709.05 to a term of imprisonment as follows:
Mitigated Minimum Presumptive Maximum Aggravated
6 years 8 years 10 years 12 years 15 years
E. The presumptive term imposed pursuant to subsection D of this section may be mitigated or aggravated pursuant to section 13-701, subsections D and E.
Sec. 11. Section 13-1403, Arizona Revised Statutes, is amended to read:
13-1403. Public sexual indecency; public sexual indecency to a minor; classification
A. A person commits public sexual indecency by intentionally or knowingly engaging in any of the following acts, if another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act:
1. An act of sexual contact.
2. An act of oral sexual contact.
3. An act of sexual intercourse.
4. An act of bestiality.
B. A person commits public sexual indecency to a minor if the person intentionally or knowingly engages in any of the acts listed in subsection A of this section and such person is reckless about whether a minor who is under fifteen years of age is present.
C. Public sexual indecency is a class 1 misdemeanor. Public sexual indecency to a minor is a class 5 felony.
D. A person who is convicted of a felony violation of this section and who has two or more historical prior felony convictions for a violation of this section or section 13‑1402 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age shall be sentenced pursuant to section 13‑709.05 to a term of imprisonment as follows:
Mitigated Minimum Presumptive Maximum Aggravated
6 years 8 years 10 years 12 years 15 years
E. The presumptive term imposed pursuant to subsection D of this section may be mitigated or aggravated pursuant to section 13-701, subsections D and E.
Sec. 12. Section 13-2308.01, Arizona Revised Statutes, is amended to read:
13-2308.01. Terrorism; classification
A. It is unlawful for a person to intentionally or knowingly do any of the following:
1. Engage in an act of terrorism.
2. Organize, manage, direct, supervise or finance an act of terrorism.
3. Solicit, incite or induce others to promote or further an act of terrorism.
4. Without lawful authority or when exceeding lawful authority, manufacture, sell, deliver, display, use, make accessible to others, possess or exercise control over a weapon of mass destruction knowing or having reason to know that the device or object involved is a weapon of mass destruction.
5. Make property available to another, by transaction, transportation or otherwise, knowing or having reason to know that the property is intended to facilitate an act of terrorism.
6. Provide advice, assistance or direction in the conduct, financing or management of an act of terrorism knowing or having reason to know that an act of terrorism has occurred or may result by:
(a) Harboring or concealing any person or property.
(b) Warning any person of impending discovery, apprehension, prosecution or conviction. This subdivision does not apply to a warning that is given in connection with an effort to bring another person into compliance with the law.
(c) Providing any person with material support or resources or any other means of avoiding discovery, apprehension, prosecution or conviction.
(d) Concealing or disguising the nature, location, source, ownership or control of material support or resources.
(e) Preventing or obstructing by means of force, deception or intimidation anyone from performing an act that might aid in the discovery, apprehension, prosecution or conviction of any person or that might aid in the prevention of an act of terrorism.
(f) Suppressing by any act of concealment, alteration or destruction any physical evidence that might aid in the discovery, apprehension, prosecution or conviction of any person or that might aid in the prevention of an act of terrorism.
(g) Concealing the identity of any person.
B. This section does not apply to any person who is a member or employee of the armed forces of the United States, a federal or state governmental agency or any political subdivision of a state, a charitable, scientific or educational institution or a private entity if both of the following apply:
1. The person is engaged in lawful activity within the scope of the person's employment and the person is otherwise duly authorized or licensed to manufacture, possess, sell, deliver, display, use, exercise control over or make accessible to others any weapon of mass destruction or to otherwise engage in any activity described in this paragraph.
2. The person is in compliance with all applicable federal and state laws in doing so.
C. A violation of subsection A of this section is a class 2 felony, except that if the court finds that at least one of the aggravating circumstances listed in section 13‑701, subsection D applies, the defendant shall be sentenced pursuant to section 13‑709.02, subsection A court may impose a life sentence. If the court imposes a life sentence, the court may order that the defendant not be released on any basis for the remainder of the defendant's natural life. If the court does not sentence the defendant to natural life, the defendant shall not be released on any basis until the person has served twenty-five calendar years.
Sec. 13. Section 13-2312, Arizona Revised Statutes, is amended to read:
13-2312. Illegal control of an enterprise; illegally conducting an enterprise; classification
A. A person commits illegal control of an enterprise if such person, through racketeering or its proceeds, acquires or maintains, by investment or otherwise, control of any enterprise.
B. A person commits illegally conducting an enterprise if such person is employed by or associated with any enterprise and conducts such enterprise's affairs through racketeering or participates directly or indirectly in the conduct of any enterprise that the person knows is being conducted through racketeering.
C. A person violates this section if he the person hires, engages or uses a minor for any conduct preparatory to or in completion of any offense in this section.
D. A knowing violation of subsection A or B of this section is a class 3 felony. A knowing violation of subsection C of this section is a class 2 felony and section 13‑709.02, subsection B applies to the sentence imposed the person is not eligible for probation, pardon, suspension of sentence or release on any basis until the person has served the sentence imposed by the court or the sentence is commuted.
Sec. 14. Section 13-3101, Arizona Revised Statutes, is amended to read:
13-3101. Definitions
A. In this chapter, unless the context otherwise requires:
1. "Deadly weapon" means anything that is designed for lethal use. The term includes a firearm.
2. "Deface" means to remove, alter or destroy the manufacturer's serial number.
3. "Explosive" means any dynamite, nitroglycerine, black powder, or other similar explosive material, including plastic explosives. Explosive does not include ammunition or ammunition components such as primers, percussion caps, smokeless powder, black powder and black powder substitutes used for hand loading purposes.
4. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive. Firearm does not include a firearm in permanently inoperable condition.
5. "Improvised explosive device" means a device that incorporates explosives or destructive, lethal, noxious, pyrotechnic or incendiary chemicals and that is designed to destroy, disfigure, terrify or harass.
6. "Occupied structure" means any building, object, vehicle, watercraft, aircraft or place with sides and a floor that is separately securable from any other structure attached to it, that is used for lodging, business, transportation, recreation or storage and in which one or more human beings either are or are likely to be present or so near as to be in equivalent danger at the time the discharge of a firearm occurs. Occupied structure includes any dwelling house, whether occupied, unoccupied or vacant.
7. "Prohibited possessor" means any person:
(a) Who has been found to constitute a danger to himself self or to others or to be persistently or acutely disabled or gravely disabled pursuant to court order under section 36‑540, and whose right to possess a firearm has not been restored pursuant to section 13-925.
(b) Who has been convicted within or without this state of a felony or who has been adjudicated delinquent for a felony and whose civil right to possess or carry a gun or firearm has not been restored.
(c) Who is at the time of possession serving a term of imprisonment in any correctional or detention facility.
(d) Who is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense as defined in section 13‑3601 or a felony offense, parole, community supervision, work furlough, home arrest or release on any other basis or who is serving a term of probation or parole pursuant to the interstate compact under title 31, chapter 3, article 4 4.1.
(e) Who is an undocumented alien or a nonimmigrant alien traveling with or without documentation in this state for business or pleasure or who is studying in this state and who maintains a foreign residence abroad. This subdivision does not apply to:
(i) Nonimmigrant aliens who possess a valid hunting license or permit that is lawfully issued by a state in the United States.
(ii) Nonimmigrant aliens who enter the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show that is sponsored by a national, state or local firearms trade organization devoted to the competitive use or other sporting use of firearms.
(iii) Certain diplomats.
(iv) Officials of foreign governments or distinguished foreign visitors who are designated by the United States department of state.
(v) Persons who have received a waiver from the United States attorney general.
8. "Prohibited weapon":
(a) Includes the following:
(i) An item that is a bomb, grenade, rocket having a propellant charge of more than four ounces or mine and that is explosive, incendiary or poison gas.
(ii) A device that is designed, made or adapted to muffle the report of a firearm.
(iii) A firearm that is capable of shooting more than one shot automatically, without manual reloading, by a single function of the trigger.
(iv) A rifle with a barrel length of less than sixteen inches, or shotgun with a barrel length of less than eighteen inches, or any firearm that is made from a rifle or shotgun and that, as modified, has an overall length of less than twenty‑six inches.
(v) An instrument, including a nunchaku, that consists of two or more sticks, clubs, bars or rods to be used as handles, connected by a rope, cord, wire or chain, in the design of a weapon used in connection with the practice of a system of self‑defense.
(vi) A breakable container that contains a flammable liquid with a flash point of one hundred fifty degrees Fahrenheit or less and that has a wick or similar device capable of being ignited.
(vii) A chemical or combination of chemicals, compounds or materials, including dry ice, that is possessed or manufactured for the purpose of generating a gas to cause a mechanical failure, rupture or bursting or an explosion or detonation of the chemical or combination of chemicals, compounds or materials.
(viii) An improvised explosive device.
(ix) Any combination of parts or materials that is designed and intended for use in making or converting a device into an item set forth in item (i), (vi) or (viii) of this subdivision.
(b) Does not include:
(i) Any fireworks that are imported, distributed or used in compliance with state laws or local ordinances.
(ii) Any propellant, propellant actuated devices or propellant actuated industrial tools that are manufactured, imported or distributed for their intended purposes.
(iii) A device that is commercially manufactured primarily for the purpose of illumination.
B. The items set forth in subsection A, paragraph 8, subdivision (a), items (i), (ii), (iii) and (iv) of this section do not include any firearms or devices that are registered in the national firearms registry and transfer records of the United States treasury department or any firearm that has been classified as a curio or relic by the United States treasury department.
Sec. 15. Section 13-3407, Arizona Revised Statutes, is amended to read:
13-3407. Possession, use, administration, acquisition, sale, manufacture or transportation of dangerous drugs; classification
A. A person shall not knowingly:
1. Possess or use a dangerous drug.
2. Possess a dangerous drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing a dangerous drug.
4. Manufacture a dangerous drug.
5. Administer a dangerous drug to another person.
6. Obtain or procure the administration of a dangerous drug by fraud, deceit, misrepresentation or subterfuge.
7. Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a dangerous drug.
B. A person who violates:
1. Subsection A, paragraph 1 of this section is guilty of a class 4 felony. Unless the drug involved is lysergic acid diethylamide, methamphetamine, amphetamine or phencyclidine or the person was previously convicted of a felony offense or a violation of this section or section 13‑3408, the court on motion of the state, considering the nature and circumstances of the offense, for a person not previously convicted of any felony offense or a violation of this section or section 13‑3408 may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is successfully terminated. The offense shall be treated as a felony for all purposes until the court enters an order designating the offense a misdemeanor.
2. Subsection A, paragraph 2 of this section is guilty of a class 2 felony.
3. Subsection A, paragraph 3 of this section is guilty of a class 3 felony, except that if the offense involved methamphetamine, the person is guilty of a class 2 felony.
4. Subsection A, paragraph 4 of this section is guilty of a class 2 felony.
5. Subsection A, paragraph 5 of this section is guilty of a class 2 felony.
6. Subsection A, paragraph 6 of this section is guilty of a class 3 felony.
7. Subsection A, paragraph 7 of this section is guilty of a class 2 felony.
C. Except as provided in subsection E of this section, a person who is convicted of a violation of subsection A, paragraph 1, 3 or 6 and who has not previously been convicted of any felony or who has not been sentenced pursuant to section 13‑703, section 13‑704, section 13‑706, subsection A, section 13-708, subsection D or any other law making the convicted person ineligible for probation is eligible for probation.
D. Except as provided in subsection E of this section, if the aggregate amount of dangerous drugs involved in one offense or all of the offenses that are consolidated for trial equals or exceeds the statutory threshold amount, a person who is convicted of a violation of subsection A, paragraph 2, 5 or 7 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
E. If the person is convicted of a violation of subsection A, paragraph 2, 3, 4 or 7 of this section and the drug involved is methamphetamine, the person shall be sentenced pursuant to section 13‑709.03, subsections A or B. as follows:
Minimum Presumptive Maximum
5 calendar years 10 calendar years 15 calendar years
A person who has previously been convicted of a violation of subsection A, paragraph 2, 3, 4 or 7 of this section involving methamphetamine or section 13‑3407.01 shall be sentenced as follows:
Minimum Presumptive Maximum
10 calendar years 15 calendar years 20 calendar years
F. A person who is convicted of a violation of subsection A, paragraph 4 of this section or subsection A, paragraph 2, 3 or 7 of this section involving methamphetamine is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
G. If a person is convicted of a violation of subsection A, paragraph 5 of this section, if the drug is administered without the other person's consent, if the other person is under eighteen years of age and if the drug is flunitrazepam, gamma hydroxy butrate or ketamine hydrochloride, the convicted person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
H. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than one thousand dollars or three times the value as determined by the court of the dangerous drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
I. A person who is convicted of a violation of this section for which probation or release before the expiration of the sentence imposed by the court is authorized is prohibited from using any marijuana, dangerous drug, narcotic drug or prescription‑only drug except as lawfully administered by a health care practitioner and as a condition of any probation or release shall be required to submit to drug testing administered under the supervision of the probation department of the county or the state department of corrections, as appropriate, during the duration of the term of probation or before the expiration of the sentence imposed.
J. If a person who is convicted of a violation of this section is granted probation, the court shall order that as a condition of probation the person perform not less than three hundred sixty hours of community restitution with an agency or organization that provides counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.
K. The presumptive term imposed pursuant to subsection E of this section may be mitigated or aggravated pursuant to section 13‑701, subsections D and E.
Sec. 16. Section 13-3411, Arizona Revised Statutes, is amended to read:
13-3411. Possession, use, sale or transfer of marijuana, peyote, prescription drugs, dangerous drugs or narcotic drugs or manufacture of dangerous drugs in a drug free school zone; violation; classification; definitions
A. It is unlawful for a person to do any of the following:
1. Intentionally be present in a drug free school zone to sell or transfer marijuana, peyote, prescription‑only drugs, dangerous drugs or narcotic drugs.
2. Possess or use marijuana, peyote, dangerous drugs or narcotic drugs in a drug free school zone.
3. Manufacture dangerous drugs in a drug free school zone.
B. A person who violates subsection A of this section is guilty of the same class of felony that the person would otherwise be guilty of had the violation not occurred within a drug free school zone, and section 13‑709.03, subsection C applies to the sentence imposed except that the presumptive, minimum and maximum sentence shall be increased by one year. The additional sentence imposed under this subsection is in addition to any enhanced punishment that may be applicable under section 13‑703, section 13‑704, section 13‑708, subsection D or any provision in this chapter. A person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31‑233, subsection A or B until the sentence imposed by the court has been served or commuted.
C. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than two thousand dollars or three times the value as determined by the court of the drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
D. Each school district's governing board or its designee, or the chief administrative officer in the case of a nonpublic school, shall place and maintain permanently affixed signs located in a visible manner at the main entrance of each school that identifies the school and its accompanying grounds as a drug free school zone.
E. The drug free school zone map prepared pursuant to title 15 shall constitute an official record as to the location and boundaries of each drug free school zone. The school district's governing board or its designee, or the chief administrative officer in the case of any nonpublic school, shall promptly notify the county attorney of any changes in the location and boundaries of any school property and shall file with the county recorder the original map prepared pursuant to title 15.
F. All school personnel who observe a violation of this section shall immediately report the violation to a school administrator. The administrator shall immediately report the violation to a peace officer. It is unlawful for any school personnel or school administrator to fail to report a violation as prescribed in this section.
G. School personnel having custody or control of school records of a student involved in an alleged violation of this section shall make the records available to a peace officer upon written request signed by a magistrate. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding. A person furnishing records required under this subsection or a person participating in a judicial or administrative proceeding or investigation resulting from the furnishing of records required under this subsection is immune from civil or criminal liability by reason of such action unless the person acted with malice.
H. A person who violates subsection F of this section is guilty of a class 3 misdemeanor.
I. For the purposes of this section:
1. "Drug free school zone" means the area within three hundred feet of a school or its accompanying grounds, any public property within one thousand feet of a school or its accompanying grounds, a school bus stop or on any school bus or bus contracted to transport pupils to any school.
2. "School" means any public or nonpublic kindergarten program, common school or high school.
Sec. 17. Section 13-3601, Arizona Revised Statutes, is amended to read:
13-3601. Domestic violence; definition; classification; sentencing option; arrest and procedure for violation; weapon seizure
A. "Domestic violence" means any act that is a dangerous crime against children as defined in section 13-705 or an offense prescribed in section 13‑1102, 13‑1103, 13‑1104, 13‑1105, 13‑1201, 13‑1202, 13‑1203, 13‑1204, 13‑1302, 13‑1303, 13‑1304, 13‑1406, 13‑1502, 13‑1503, 13‑1504, 13‑1602 or 13‑2810, section 13‑2904, subsection A, paragraph 1, 2, 3 or 6, section 13‑2910, subsection A, paragraph 8 or 9, section 13-2915, subsection A, paragraph 3 or section 13‑2916, 13‑2921, 13‑2921.01, 13‑2923, 13‑3019, 13‑3601.02 or 13‑3623, if any of the following applies:
1. The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
2. The victim and the defendant have a child in common.
3. The victim or the defendant is pregnant by the other party.
4. The victim is related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent‑in‑law, grandparent‑in‑law, stepparent, step‑grandparent, stepchild, step‑grandchild, brother‑in‑law or sister‑in‑law.
5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
6. The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:
(a) The type of relationship.
(b) The length of the relationship.
(c) The frequency of the interaction between the victim and the defendant.
(d) If the relationship has terminated, the length of time since the termination.
B. A peace officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that domestic violence has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense is a felony or a misdemeanor and whether the offense was committed within or without the presence of the peace officer. In cases of domestic violence involving the infliction of physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, the peace officer shall arrest a person, with or without a warrant, if the officer has probable cause to believe that the offense has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense was committed within or without the presence of the peace officer, unless the officer has reasonable grounds to believe that the circumstances at the time are such that the victim will be protected from further injury. Failure to make an arrest does not give rise to civil liability except pursuant to section 12‑820.02. In order to arrest both parties, the peace officer shall have probable cause to believe that both parties independently have committed an act of domestic violence. An act of self‑defense that is justified under chapter 4 of this title is not deemed to be an act of domestic violence. The release procedures available under section 13‑3883, subsection A, paragraph 4 and section 13‑3903 are not applicable to arrests made pursuant to this subsection.
C. A peace officer may question the persons who are present to determine if a firearm is present on the premises. On learning or observing that a firearm is present on the premises, the peace officer may temporarily seize the firearm if the firearm is in plain view or was found pursuant to a consent to search and if the officer reasonably believes that the firearm would expose the victim or another person in the household to a risk of serious bodily injury or death. A firearm that is owned or possessed by the victim shall not be seized unless there is probable cause to believe that both parties independently have committed an act of domestic violence.
D. If a firearm is seized pursuant to subsection C of this section, the peace officer shall give the owner or possessor of the firearm a receipt for each seized firearm. The receipt shall indicate the identification or serial number or other identifying characteristic of each seized firearm. Each seized firearm shall be held for at least seventy‑two hours by the law enforcement agency that seized the firearm.
E. If a firearm is seized pursuant to subsection C of this section, the victim shall be notified by a peace officer before the firearm is released from temporary custody.
F. If there is reasonable cause to believe that returning a firearm to the owner or possessor may endanger the victim, the person who reported the assault or threat or another person in the household, the prosecutor shall file a notice of intent to retain the firearm in the appropriate superior, justice or municipal court. The prosecutor shall serve notice on the owner or possessor of the firearm by certified mail. The notice shall state that the firearm will be retained for not more than six months following the date of seizure. On receipt of the notice, the owner or possessor may request a hearing for the return of the firearm, to dispute the grounds for seizure or to request an earlier return date. The court shall hold the hearing within ten days after receiving the owner's or possessor's request for a hearing. At the hearing, unless the court determines that the return of the firearm may endanger the victim, the person who reported the assault or threat or another person in the household, the court shall order the return of the firearm to the owner or possessor.
G. A peace officer is not liable for any act or omission in the good faith exercise of the officer's duties under subsections C, D, E and F of this section.
H. Each indictment, information, complaint, summons or warrant that is issued and that involves domestic violence shall state that the offense involved domestic violence and shall be designated by the letters DV. A domestic violence charge shall not be dismissed or a domestic violence conviction shall not be set aside for failure to comply with this subsection.
I. A person who is arrested pursuant to subsection B of this section may be released from custody in accordance with the Arizona rules of criminal procedure or any other applicable statute. Any order for release, with or without an appearance bond, shall include pretrial release conditions that are necessary to provide for the protection of the alleged victim and other specifically designated persons and may provide for additional conditions that the court deems appropriate, including participation in any counseling programs available to the defendant.
J. When a peace officer responds to a call alleging that domestic violence has been or may be committed, the officer shall inform in writing any alleged or potential victim of the procedures and resources available for the protection of the victim including:
1. An order of protection pursuant to section 13‑3602, an injunction pursuant to section 25‑315 and an injunction against harassment pursuant to section 12‑1809.
2. The emergency telephone number for the local police agency.
3. Telephone numbers for emergency services in the local community.
K. A peace officer is not civilly liable for noncompliance with subsection J of this section.
L. If a person is convicted of an offense involving domestic violence and the victim was pregnant at the time of the commission of the offense, at the time of sentencing the court shall take into consideration the fact that the victim was pregnant and may increase the sentence.
L. M. An offense that is included in domestic violence carries the classification prescribed in the section of this title in which the offense is classified. If the defendant committed a felony offense listed in subsection A of this section against a pregnant victim and knew that the victim was pregnant or if the defendant committed a felony offense causing physical injury to a pregnant victim and knew that the victim was pregnant, section 13‑709.04, subsection B applies to the sentence imposed The maximum sentence otherwise authorized for that violation shall be increased by up to two years.
Sec. 18. Section 13-3961, Arizona Revised Statutes, is amended to read:
13-3961. Offenses not bailable; purpose; preconviction; exceptions
A. A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following:
1. A capital offense.
2. Sexual assault.
3. Sexual conduct with a minor who is under fifteen years of age.
4. Molestation of a child who is under fifteen years of age.
5. A serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally. For the purposes of this paragraph:
(a) The court shall consider all of the following in making a determination that a person has entered or remained in the United States illegally:
(i) Whether a hold has been placed on the arrested person by the United States immigration and customs enforcement.
(ii) Any indication by a law enforcement agency that the person is in the United States illegally.
(iii) Whether an admission by the arrested person has been obtained by the court or a law enforcement agency that the person has entered or remained in the United States illegally.
(iv) Any information received from a law enforcement agency pursuant to section 13‑3906.
(v) Any evidence that the person has recently entered or remained in the United States illegally.
(vi) Any other relevant information that is obtained by the court or that is presented to the court by a party or any other person.
(b) "Serious felony offense" means any class 1, 2, 3 or 4 felony or any violation of section 28‑1383.
B. The purposes of bail and any conditions of release that are set by a judicial officer include:
1. Assuring the appearance of the accused.
2. Protecting against the intimidation of witnesses.
3. Protecting the safety of the victim, any other person or the community.
C. The initial determination of whether an offense is bailable pursuant to subsection A of this section shall be made by the magistrate or judicial officer at the time of the person's initial appearance.
D. Except as provided in subsection A of this section, a person who is in custody shall not be admitted to bail if the person is charged with a felony offense and the state certifies by motion and the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community and that the proof is evident or the presumption great that the person committed the offense for which the person is charged. For the purposes of this subsection, "violent offense" means either of the following:
1. A dangerous crime against children.
2. Terrorism.
E. On oral motion of the state, the court shall order the hearing required by subsection D of this section at or within twenty‑four hours of the initial appearance unless the person who is subject to detention or the state moves for a continuance. A continuance that is granted on the motion of the person shall not exceed five calendar days unless there are extenuating circumstances. A continuance on the motion of the state shall be granted on good cause shown and shall not exceed twenty‑four hours. The prosecutor shall provide reasonable notice and an opportunity for victims and witnesses to be present and heard at any hearing. The person may be detained pending the hearing. The person is entitled to representation by counsel and is entitled to present information by proffer or otherwise, to testify and to present witnesses in the person's own behalf. Testimony of the person charged that is given during the hearing shall not be admissible on the issue of guilt in any subsequent judicial proceeding, except as it might relate to the compliance with or violation of any condition of release subsequently imposed or the imposition of appropriate sentence or in perjury proceedings, or for the purposes of impeachment. The case of the person shall be placed on an expedited calendar and, consistent with the sound administration of justice, the person's trial shall be given priority. The person may be admitted to bail in accordance with the Arizona rules of criminal procedure whenever a judicial officer finds that a subsequent event has eliminated the basis for detention.
F. The finding of an indictment or the filing of an information does not add to the strength of the proof or the presumption to be drawn.
G. In a hearing pursuant to subsection C D of this section, proof that the person is a criminal street gang member may give rise to the inference that the person poses a substantial danger to another person or the community and that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community.
Sec. 19. Section 28-1387, Arizona Revised Statutes, is amended to read:
28-1387. Prior convictions; alcohol or other drug screening, education and treatment; license suspension; supervised probation; civil liability; procedures
A. The court shall allow the allegation of a prior conviction or any other pending charge of a violation of section 28‑1381, 28‑1382 or 28‑1383 or an act in another jurisdiction that if committed in this state would be a violation of section 28‑1381, 28‑1382 or 28‑1383 filed twenty or more days before the date the case is actually tried and may allow the allegation of a prior conviction or any other pending charge of a violation of section 28‑1381, 28‑1382 or 28‑1383 or an act in another jurisdiction that if committed in this state would be a violation of section 28‑1381, 28‑1382 or 28‑1383 filed at any time before the date the case is actually tried if this state makes available to the defendant when the allegation is filed a copy of any information obtained concerning the prior conviction or other pending charge. Any conviction may be used to enhance another conviction irrespective of the dates on which the offenses occurred within the eighty‑four month provision. For the purposes of this article, an order of a juvenile court adjudicating a person delinquent is equivalent to a conviction.
B. In addition to any other penalties prescribed by law, the judge shall order a person who is convicted of a violation of section 28‑1381, 28‑1382 or 28-1383 to complete alcohol or other drug screening that is provided by a facility approved by the department of health services or a probation department. If a judge determines that the person requires further alcohol or other drug education or treatment, the person may be required pursuant to court order to obtain alcohol or other drug education or treatment under the court's supervision from an approved facility. The judge may review an education or treatment determination at the request of the state, the defendant or the probation officer or on the judge's initiative. The person shall pay the costs of the screening, education or treatment unless, after considering the person's ability to pay all or part of the costs, the court waives all or part of the costs. If a person is referred to a screening, education or treatment facility, the facility shall report to the court whether the person has successfully completed the screening, education or treatment program. The court may accept evidence of a person's completion of an alcohol or other drug screening, education or treatment program pursuant to section 28-1445 as sufficient to meet the requirements of this section or section 28-1381, 28-1382 or 28‑1383 or may order the person to complete additional alcohol or other drug screening, education or treatment programs. If a person has previously been ordered to complete an alcohol or other drug screening, education or treatment program pursuant to this section, the judge shall order the person to complete an alcohol or other drug screening, education or treatment program unless the court determines that alternative sanctions are more appropriate.
C. After a person who is sentenced pursuant to section 28‑1381, subsection I has served twenty‑four consecutive hours in jail or after a person who is sentenced pursuant to section 28‑1381, subsection K or section 28‑1382, subsection D or E has served forty‑eight consecutive hours in jail and after the court receives confirmation that the person is employed or is a student, the court may provide in the sentence that the defendant, if the defendant is employed or is a student and can continue the defendant's employment or schooling, may continue the employment or schooling for not more than twelve hours a day nor more than five days a week. The person shall spend the remaining day, days or parts of days in jail until the sentence is served and shall be allowed out of jail only long enough to complete the actual hours of employment or schooling.
D. Unless the license of a person convicted under section 28‑1381 or 28‑1382 has been or is suspended pursuant to section 28‑1321 or 28‑1385, the department on receipt of the abstract of conviction of a violation of section 28‑1381 or 28‑1382 shall suspend the license of the affected person for not less than ninety consecutive days.
E. When the department receives notification that the person meets the criteria provided in section 28‑1385, subsection G, the department shall suspend the driving privileges of the person for not less than thirty consecutive days and shall restrict the driving privileges of the person for not less than sixty consecutive additional days to travel between any of the following:
1. The person's place of employment and residence and during specified periods of time while at employment.
2. The person's place of residence and the person's secondary or postsecondary school, according to the person's employment or educational schedule.
3. The person's place of residence and a screening, education or treatment facility for scheduled appointments.
4. The person's place of residence and the office of the person's probation officer for scheduled appointments.
F. If a person is placed on probation for violating section 28‑1381 or 28‑1382, the probation shall be supervised unless the court finds that supervised probation is not necessary or the court does not have supervisory probation services.
G. Any political subdivision processing or using the services of a person ordered to perform community restitution pursuant to section 28‑1381 or 28‑1382 does not incur any civil liability to the person ordered to perform community restitution as a result of these activities unless the political subdivision or its agent or employee acts with gross negligence.
H. If a person fails to complete the community restitution ordered pursuant to section 28-1381, subsection K or section 28-1382, subsection E, the court may order alternative sanctions if the court determines that alternative sanctions are more appropriate.
I. Except for another violation of this article, the state shall not dismiss a charge of violating any provision of this article unless there is an insufficient legal or factual basis to pursue that charge.
Sec. 20. Section 31-418, Arizona Revised Statutes, is amended to read:
31-418. Community supervision fee; deposit; community corrections enhancement fund
A. During the period of time that the prisoner remains on community supervision, the state department of corrections shall require as a condition of community supervision that the prisoner pay a monthly supervision fee of at least sixty‑five dollars unless, after determining the inability of the prisoner to pay the fee, the department requires payment of a lesser amount. The supervising community supervision officer shall monitor the collection of the fee.
B. Seventy per cent of the monies collected pursuant to subsection A of this section shall be deposited, pursuant to sections 35‑146 and 35‑147, in the victim compensation and assistance fund established by section 41‑2407 and thirty per cent shall be deposited in the community corrections enhancement fund established by this section.
C. The community corrections enhancement fund is established consisting of monies received pursuant to subsection B of this section, sections 31‑411, 31‑466, 31‑467.06 and 41‑1604.08 and section 41‑1604.13, subsection D, paragraph 8. The department shall administer the fund and use fund monies to pay for costs related to community corrections.
Sec. 21. Repeal
Title 31, chapter 3, article 4, Arizona Revised Statutes, is repealed.
Sec. 22. Section 41-1604.10, Arizona Revised Statutes, is amended to read:
41-1604.10. Earned release credits; forfeiture; restoration; applicability
A. Each prisoner classified as parole eligible, class one, pursuant to section 41‑1604.09, shall be allowed the following release credits:
1. If sentenced upon a first conviction other than pursuant to section 13‑751 or other than for a felony involving the use or exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury upon another A dangerous offense as defined in section 13-105, every two days served within class one shall be counted as an earned release credit of one day.
2. If sentenced pursuant to the section 13-703, subsection B, paragraph 2, or upon first conviction of a class 4, 5 or 6 felony involving the use or exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury a dangerous offense as defined in section 13-105 or any other provisions of law which prohibits release on any basis until serving not less than one‑half the sentence imposed by the court, every two days served within class one shall be counted as an earned release credit of one day.
3. If sentenced pursuant to any other provision of section 13-703, section 13-704, subsection A, B, C, D or E, section 13-706, subsection A or section 13-708, subsection D or any other provision of law which prohibits release on any basis until serving not less than two‑thirds the sentence imposed by the court, every three days served within class one shall be counted as an earned release credit of one day.
B. Release credits earned by a prisoner pursuant to subsection A of this section shall not reduce the term of imprisonment imposed by the court on such prisoner, nor reduce the sentence imposed on the prisoner for the purpose of determining such prisoner's parole eligibility.
C. Upon reclassification of a prisoner resulting from the prisoner's failure to adhere to the rules of the department or failure to demonstrate a continual willingness to volunteer for or successfully participate in a work, educational, treatment or training program, the director may declare any and all release credits earned by the prisoner forfeited. In the discretion of the director the release credits may subsequently be restored. The director shall maintain an account of release credits earned by each prisoner.
D. The director, according to rules adopted by the department, may authorize the release of any prisoner who has earned release credits which, when added to the time served by the prisoner, equal the sentence imposed by the court which shall be the prisoner's earned release credit date. A prisoner on earned release credit release is not under the control of the department and the department is not required to provide parole services or otherwise supervise any prisoner released, except that the department may revoke the release of the prisoner until the final expiration of his sentence if the department has reason to believe that the released prisoner has engaged in criminal conduct during the term of his release. If a prisoner has a term of probation to be completed or served, the probation department shall begin supervision of the prisoner when the prisoner is released on the earned release credit date. If the prisoner's term of probation equals or exceeds the prisoner's final expiration date, the director of the state department of corrections shall issue the prisoner an absolute discharge on the prisoner's earned release credit date. The prisoner is not under the control of the department and the department is not required to provide parole services or otherwise supervise the prisoner. If the prisoner's term of probation is less than the prisoner's final expiration date, the prisoner is not under the control of the department and the department is not required to provide parole services or otherwise supervise the prisoner, except that the department may revoke the release at any time between the earned release credit date and the final expiration date if the department has reason to believe that the released prisoner has engaged in criminal conduct during the term of release. The director may issue the prisoner an absolute discharge from the sentence of imprisonment if it appears that the prisoner will live and remain at liberty without violating the law and it is in the best interest of the state. The state department of corrections shall provide reasonable notice to the probation department of the scheduled release of the prisoner from confinement by the state department of corrections.
E. A prisoner shall forfeit five days of the prisoner's earned release credits if the court finds or a disciplinary hearing held after a review by and recommendations from the attorney general's office determines that the prisoner does any of the following:
1. Brings a claim without substantial justification.
2. Unreasonably expands or delays a proceeding.
3. Testifies falsely or otherwise presents false information or material to the court.
4. Submits a claim that is intended solely to harass the party it is filed against.
F. If the prisoner does not have five days of earned release credits, the prisoner shall forfeit the prisoner's existing earned release credits and be ineligible from accruing earned release credits until the number of earned release credits the prisoner would have otherwise accrued equals the difference between five days and the number of existing earned release credit days the prisoner forfeits pursuant to this section.
G. This section applies only to persons who commit felonies before January 1, 1994.
Sec. 23. Section 41-1604.13, Arizona Revised Statutes, is amended to read:
41-1604.13. Home arrest; eligibility; victim notification; conditions; applicability; definitions
A. An inmate who has served not less than six months of the sentence imposed by the court is eligible for the home arrest program if the inmate:
1. Meets the following criteria:
(a) Was convicted of committing a class 4, 5 or 6 felony not involving the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument a dangerous offense.
(b) Was not convicted of a sexual offense.
(c) Has not previously been convicted of any felony.
2. Violated parole by the commission of a technical violation that was not chargeable or indictable as a criminal offense.
3. Is eligible for work furlough.
4. Is eligible for parole pursuant to section 31‑412, subsection A.
B. The board of executive clemency shall determine which inmates are released to the home arrest program based on the criteria in subsection A of this section and based on a determination that there is a substantial probability that the inmate will remain at liberty without violating the law and that the release is in the best interests of the state after considering the offense for which the inmate is presently incarcerated, the prior record of the inmate, the conduct of the inmate while incarcerated and any other information concerning the inmate that is in the possession of the state department of corrections, including any presentence report. The board maintains the responsibility of revocation as applicable to all parolees.
C. An inmate who is otherwise eligible for home arrest, who is not on work furlough and who is currently serving a sentence for a conviction of a serious offense or conspiracy to commit or attempt to commit a serious offense shall not be granted home arrest except by one of the following votes:
1. A majority affirmative vote if four or more members of the board of executive clemency consider the action.
2. A unanimous affirmative vote if three members of the board of executive clemency consider the action.
3. A unanimous affirmative vote if two members of the board of executive clemency consider the action pursuant to section 31‑401, subsection I and the chairman of the board concurs after reviewing the information considered by the two members.
D. Home arrest is conditioned on the following:
1. Active electronic monitoring surveillance for a minimum term of one year or until eligible for general parole.
2. Participation in gainful employment or other beneficial activities.
3. Submission to alcohol and drug tests as mandated.
4. Payment of the electronic monitoring fee in an amount determined by the board of not less than one dollar per day and not more than the total cost of the electronic monitoring unless, after determining the inability of the inmate to pay the fee, the board requires payment of a lesser amount. The fees collected shall be returned to the department's home arrest program to offset operational costs of the program.
5. Remaining at the inmate's place of residence at all times except for movement out of the residence according to mandated conditions.
6. Adherence to any other conditions imposed by the court, board of executive clemency or supervising corrections officers.
7. Compliance with all other conditions of supervision.
8. Payment of a monthly home arrest supervision fee of at least sixty‑five dollars unless, after determining the inability of the inmate to pay the fee, the department requires payment of a lesser amount. The supervising corrections officer shall monitor the collection of the fee. Monies collected shall be deposited, pursuant to sections 35‑146 and 35‑147, in the community corrections enhancement fund established by section 31‑418.
E. Before holding a hearing on home arrest, the board on request shall notify and afford an opportunity to be heard to the presiding judge of the superior court in the county in which the inmate requesting home arrest was sentenced, the prosecuting attorney and the director of the arresting law enforcement agency. The board shall notify the victim of the offense for which the inmate is incarcerated. The notice shall state the name of the inmate requesting home arrest, the offense for which the inmate was sentenced, the length of the sentence and the date of admission to the custody of the state department of corrections. The notice to the victim shall also inform the victim of the victim's right to be present and to submit a written report to the board expressing the victim's opinion concerning the inmate's release. No hearing concerning home arrest may be held until fifteen days after the date of giving the notice. On mailing the notice, the board shall file a hard copy of the notice as evidence that notification was sent.
F. An inmate who is placed on home arrest is on inmate status, is subject to all the limitations of rights and movement and is entitled only to due process rights of return.
G. If an inmate violates a condition of home arrest that poses any threat or danger to the community, or commits an additional felony offense, the board shall revoke the home arrest and return the inmate to the custody of the state department of corrections to complete the term of imprisonment as authorized by law.
H. The ratio of supervising corrections officers to supervisees in the home arrest program shall be no greater than one officer for every twenty‑five supervisees.
I. The board shall determine when the supervisee is eligible for transfer to the regular parole program pursuant to section 31‑411.
J. This section applies only to persons who commit felony offenses before January 1, 1994.
K. For the purposes of this section: ,
1. "Dangerous offense" has the same meaning prescribed in section 13‑105.
2. "Serious offense" includes any of the following:
1. (a) A serious offense as defined in section 13‑706, subsection F, paragraph 1, subdivision (a), (b), (c), (d), (e), (g), (h), (i), (j) or (k).
2. (b) A dangerous crime against children as defined in section 13‑705. The citation of section 13-705 is not a necessary element for a serious offense designation.
3. (c) A conviction under a prior criminal code for any offense that possesses reasonably equivalent offense elements as the offense elements that are listed under section 13‑705, subsection P, paragraph 1 or section 13‑706, subsection F, paragraph 1.
