GREEN MOUNTAIN CRIMINAL JUSTICE TRAINING

ACT NO. 167. Motor vehicles; operating with license suspended; court procedures; assistant judges; interpreters for persons with limited English proficiency; picketing at funerals. (H.97)

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT167.HTM

ACT NO. 169. Employer access to criminal conviction records. (S.262)

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT169.HTM

ACT NO. 179. AN ACT RELATING TO INSURANCE FRAUD. (H.150)

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT179.HTM

NO. 180. AN ACT RELATING TO TRANSPORTATION OF INDIVIDUALS IN THE CUSTODY OF THE STATE. (H.306)

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT180.HTM

ACT NO. 192. Crimes; sex offenders (H.856)

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT192.HTM

ACT NO. 193. Court procedure; orders against stalking and sexual assault; no contact orders; victims’ rights study. (H.373)

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT193.HTM

ACT NO. 198. Sealing juvenile records; care of children in the custody of the state; rights of persons in need of guardianship. (S.194)

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT198.HTM

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT121.HTM

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http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT198.HTM

ACT NO. 198

(S.194)

Sealing juvenile records; care of children in the custody of the state;

rights of persons in need of guardianship

This act addresses six distinct issues: The sealing of delinquency and conviction records relating to offenses committed by a person under the age of 18; placement of a child who is in the custody of the state; judicial determinations at a child’s detention hearing regarding whether reasonable efforts were made to prevent the unnecessary removal of the child from the home; establishment of a committee to study and recommend legislative changes to chapter 55 of Title 33 relating to juvenile delinquency and children in need of care or supervision proceedings; rights of persons in need of guardianship; and the establishment of a committee to study the need for and feasibility of creating a pilot project for guardianship monitors.

With respect to delinquency records, the act removes the requirement that a person apply to seal his or her delinquency record. For delinquencies committed on or after July 1, 1996, the record will be sealed automatically provided that two years have elapsed since the final discharge of the person, the person has not been convicted of a listed crime or adjudicated delinquent of such an offense after such initial adjudication, and no proceeding is pending seeking such conviction or adjudication; and the person’s rehabilitation has been attained to the satisfaction of the court.

At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed, the court will provide such person’s name and other identifying information to the state’s attorney in the county in which the person was adjudicated delinquent. The state’s attorney may object and a hearing may be held to address the state’s attorney’s objection. The order to seal shall include all the files and records relating to the matter; however, the court may limit the order to the court files and records only upon good cause shown by the state’s attorney.

The process of sealing files and records for a child who was adjudicated delinquent on or after July 1, 1996 but before July 1, 2001 must be completed by January 1, 2010. The process of sealing files and records for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004 must be completed by January 1, 2008.

If a person was adjudicated delinquent before July 1, 1996, he or she may apply to have the files and records sealed. After notice to all parties of record and hearing, the court will order the sealing of all files and records related to the proceeding if it finds that the person has not been convicted of a listed crime or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication and the person’s rehabilitation has been attained to the satisfaction of the court.

On application of a person who, while a child, was found to be in need of care or supervision or, on the court’s own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records related to the proceeding if it finds the person has reached the age of majority; and sealing the person’s record is in the interest of justice.

On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed prior to attaining the age of majority, after notice to all parties of record and hearing, the court will order the sealing of all files and records related to the proceeding provided that two years have elapsed since the final discharge of the person, the person has not been convicted of a listed crime or adjudicated delinquent of such an offense after such initial adjudication, and no proceeding is pending seeking such conviction or adjudication; and the person’s rehabilitation has been attained to the satisfaction of the court.

In matters relating to a person who was charged with a criminal offense on or after July 1, 2006 and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed. In matters relating to a person who was charged with a criminal offense prior to July 1, 2006 and prior to the person attaining the age of majority, the person may apply to seal the files and records of the court applicable to the proceeding. The court will order the sealing, provided that two years have elapsed since the dismissal of the charge. This provision applies to court files only.

Pursuant to the act, the court will no longer be required to provide notice to parties of record prior to ordering the sealing of juvenile diversion records. Parties may still file a motion to object to the sealing.

Under this act, to “seal” a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record. A “sealed” file or record is retained and shall not be destroyed unless a court issues an order to expunge the record. Unless otherwise noted, a sealing order under this act shall include the files and records of the court, law enforcement, prosecution, and the department for children and families related to the specific court proceeding that is the subject of the sealing.

Except as provided below, upon the entry of an order sealing such files and records under this act, the proceedings in the matter shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter. A court, agency, or department that seals a record may keep a special index of files and records that have been sealed. The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to the act.

A department or agency may petition to inspect its own files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records, or in certain public safety circumstances.

Any entities subject to sealing orders pursuant to this act are required to establish sealing policies and must provide a copy of such policies to the house and senate committees on judiciary no later than January 15, 2007.

Sections 5 and 6 of the act address the placement of children in the custody of the state. At the emergency detention hearing, if the court concludes that a child taken into custody may be found delinquent or in need of care or supervision, the court may transfer legal custody of the child to the commissioner pending a detention hearing. Unless ordered otherwise at or after the detention hearing, the commissioner will have sole authority to place the child in a family home or a treatment, rehabilitative, detention, or educational institution or facility. If, at the detention hearing, the court finds that no other suitable placement is available and the child presents a risk of injury to him- or herself, to others, or to property, the court may order that the child be placed in a secure facility used for the detention of delinquent children until the commissioner determines that a suitable placement is available for the child. Alternatively, the court may order that the child be placed at a secure facility used for the detention of delinquent children for up to seven days. Any order for placement at a secure facility will expire at the end of the seventh day following its issuance unless, after hearing, the court extends the order for a time period not to exceed seven days.

Section 7 of the act clarifies language added in 2005 that requires the court to make a judicial determination at the detention hearing that reasonable efforts were made to prevent unnecessary removal of the child from the home. Written findings are not required if aggravating circumstances are present. This act clarified that one of the aggravating circumstances may be that the parental rights of the parent with respect to a sibling have been terminated involuntarily.

Section 8 of the act establishes a committee for the purpose of studying and recommending legislative changes to chapter 55 of Title 33, relating to juvenile delinquency and children in need of care or supervision proceedings. The committee consists of 10 members and is chaired by the administrative judge. The committee will report its findings and recommendations to the house and senate committees on judiciary by January 15, 2007, after which the committee will cease to exist.

Sections 9-13 of the act address the rights of persons under a guardianship order and focus specifically on general rights of wards, right to counsel, and the requirements of the guardian regarding a change in residential placement. Section 14 of the act creates a committee to study the need for and feasibility of establishing a pilot guardianship monitor program in at least two probate court districts. The committee is required to report its findings and recommendations to the house and senate committees on judiciary and the governor on or before January 15, 2007. The report shall include a recommendation of whether a system of guardianship monitoring is needed, and if so, the details for such a program.

Effective Date: September 1, 2006; however, study committees examining juvenile proceedings and guardianship monitors take effect upon passage.

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT169.HTM

ACT NO. 169

(S.262)

Employer access to criminal conviction records

This act increases access to Vermont criminal conviction records in three ways:

The act permits an employer to obtain the Vermont criminal conviction record of a person who has applied for a position as an employee or volunteer with that employer.
The act permits the Vermont criminal justice training council to obtain a Vermont criminal conviction record for a person who has applied for admission to a course of instruction offered by the council.
The act permits a licensed private investigator to obtain a Vermont criminal conviction record for a criminal justice agency that hired the PI to provide investigative services for criminal justice purposes, for a licensed attorney who hired the PI to provide investigative services to the attorney in a criminal matter in which the attorney is an attorney of record, and for a licensed insurer who hires a licensed private investigator to provide investigative services to the insurer in a fraud investigation.

A $10.00 fee is required to obtain the record; however, the fee will be waived for employers who work with children, the elderly, and the disabled.

The Vermont criminal information center is required to report to the house and senate committees on judiciary by January 15, 2007 regarding various aspects of public access to VCIC records.

An access to criminal history record information committee is established for the purpose of making findings and recommendations regarding public access to statewide criminal history records from the Vermont crime information center and the dissemination of electronic criminal case record information by the court. The committee is composed of seven members and is chaired by an acting judge or justice. The committee is required to report its findings to the house and senate committees on judiciary by January 15, 2007.

The judiciary prohibited providing public access via the internet to criminal case records or family court case records prior to June 1, 2007. The court may permit criminal justice agencies internet access to criminal case records for criminal justice purposes.

Effective Date: July 1, 2006

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT156.HTM

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT180.HTM

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT149.HTM

ACT NO. 149

(S.186)

Crimes; false reports to law enforcement authorities

This act provides that a person commits the crime of making a false report to a law enforcement authority if the person knowingly gives false information to a law enforcement officer with the purpose of deflecting an investigation from the person to another person.

Effective Date: July 1, 2006

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT124.HTM

ACT NO. 124

(S.27)

Crimes; abandonment of baby; safe haven

This act creates an exception to the crime of abandoning a baby if the person voluntarily delivers a child not more than 30 days of age to an employee, staff member, or volunteer at a health care facility, fire station, police station, place of worship, or to a 911 emergency responder at an agreed-upon location. A person may not be subject to criminal or civil liability for delivering a child in a manner that satisfies these requirements. The person or facility to whom the child is delivered is required to take temporary custody of the child, ensure that any necessary medical care is provided, and notify a law enforcement agency and the department for children and families that the child has been taken into custody. The department for children and families is then required to take custody of the child as soon as practicable.

Effective Date: July 1, 2006

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT126.HTM

ACT NO. 126

(H.33)

Court procedures; Vermont uniform mediation act

This act, which adopts the Uniform Mediation Act, establishes rules and procedures which govern most mediations in Vermont unless the parties have agreed otherwise. The act establishes a privilege of confidentiality for mediators and participants which prohibits what is said during mediation from being used in later legal proceedings. The privilege does not apply to threats made to inflict bodily harm or other violent crime, when parties attempt to use mediation to plan or commit a crime, when the information is needed to prove or disprove allegations of child abuse or neglect, or when the information is needed to prove or disprove a claim or complaint of professional misconduct by a mediator. The act also requires the mediator to disclose his or her qualifications and any known conflicts of interest.

Effective Date: July 1, 2006

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT119.HTM

ACT NO. 119

(H.874)

Crimes; first and second degree murder; sentencing

This act modifies the sentencing procedures for offenders convicted of first or second degree murder to comply with the constitutional requirements established by the Vermont supreme court in the case of State v. Provost, 2005 VT 134 (2005). The applicable procedure depends upon when the murder is committed.

With respect to murders committed on or after May 1, 2006, the punishment for murder in the first degree is either imprisonment for life without the possibility of parole or imprisonment for a minimum term of not less than 35 years and a maximum term of life. The punishment for murder in the second degree is either imprisonment for life without the possibility of parole or imprisonment for a minimum term of not less than 20 years and a maximum term of life.

The procedure is different if the murder was committed before May 1, 2006 and the defendant was either not sentenced before that date or had his or her sentence stricken and remanded for resentencing pursuant to Provost. In such cases, the the punishment for murder in the first degree is imprisonment for life and for a minimum term of 35 years unless a jury finds that there are aggravating or mitigating factors which justify a different minimum term. If the jury finds that the aggravating factors outweigh any mitigating factors, the court may set a minimum term longer than 35 years, up to and including life without parole. If the jury finds that the mitigating factors outweigh any aggravating factors, the court may set a minimum term at less than 35 years but not less than 15 years. The procedures are identical for murder in the second degree, except that the minimum term of imprisonment is 20 years and the court may set the term at less than 20 years but not less than 10 years.

Effective Date: May 1, 2006

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT192.HTM

ACT NO. 192

(H.856)

Crimes; sex offenders

This act contains a significant number of measures intended to improve investigation, prevention, sentencing, and treatment with respect to crimes of sexual violence.

The act directs the antiviolence partnership at the University of Vermont to convene an education task force on sexual violence prevention. Special investigative units, which specialize in investigating sex crimes, are expanded so that access to them is available in all regions of Vermont.

The act establishes a sentencing system, called “indeterminate lifetime sentencing,” which mandates lifetime maximum sentences for most sex offenders. For most offenses minimum sentences are not mandated, and will therefore vary according to the circumstances associated with the crime. This means that, after the offender’s release, he or she will continue to be under the supervision of the department of corrections for life, and will be subject to the underlying lifetime maximum term of incarceration if he or she re-offends or violates the terms of probation. Additionally, the offender must complete sex offender treatment and programming in order to be eligible for release.

For the crime of lewd and lascivious conduct with a child, the act establishes a presumptive minimum sentence of five years of incarceration for a second offense and ten years of incarceration for a third or subsequent offense. The presumptive minimum must be served unless the judge makes written findings that a lesser sentence will serve the interests of justice and public safety, in which case the judge may downward depart to a lesser term of incarceration.

For the crime of aggravated sexual assault, the act establishes a presumptive minimum sentence of ten years of incarceration and a mandatory minimum sentence of five years if incarceration. The ten-year presumptive minimum must be served unless the judge makes written findings that a lesser sentence will serve the interests of justice and public safety. The judge may downward depart if these findings are made, but still must impose a sentence of at least five years of incarceration.

The act creates an exception, known as an “age gap,” to some sexual offenses when both parties have consented to the sexual conduct and one of the parties is a minor. Under the age gap exception, no crime is committed if a person is charged with lewd and lascivious conduct with a child, luring a child, or statutory rape, and the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

The act makes a number of changes to the sex offender registry. The act permits arrest without a warrant for failure to comply with registry requirements, and increases the penalties for knowingly failing to comply for more than five consecutive days. Release of offender addresses is permitted if the requestor can articulate a concern regarding the requestor’s personal safety or the safety of another. High risk offenders are required to report to the department of corrections within 36 hours of any change of address. With respect to offenders on the internet registry, the act permits law enforcement to notify the community about the offender either on their own initiative (“active notification”) or in response to a request for information (“passive notification”) so long as written protocols developed by law enforcement governing the manner and circumstances of the release are followed. With respect to offenders not on the internet registry, the act permits active community notification only if there is a compelling risk to public safety, the department of corrections and the Vermont crime information center have been consulted, and written protocols are followed.

The act adds all recidivist sex offenders to the internet sex offender registry, and adds offenders who commit lewd and lascivious conduct with a child to the registry if the offender is determined by the department of corrections to be high risk. The act also removes the “log-in requirement,” so that members of the public who access the internet registry do not have to register or provide identifying information.

The act requires the department of corrections to conduct pre-sentence investigations, which may include psychosexual evaluations, for all sex offenders, and to develop a release plan and a community reentry support team for all high-risk sex offenders. The department is also required, prior to the release of a sex offender, to give careful consideration to the proximity of the offender’s residence to any risk group associated with the offender. The act establishes term probation for non-violent offenders, which means the term of probation for a non-violent offender may not generally exceed the statutory maximum term of imprisonment for the offense, and expands the global positioning system monitoring pilot program to accommodate 80 more offenders.

The act also establishes the Vermont Sentencing Commission to oversee criminal sentencing practices, reduce geographical disparities in sentencing, review developments in criminal law and make recommendations to the general assembly.

Effective Date: May 26, 2006

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT167.HTM

ACT NO. 167

(H.97)

Motor vehicles; operating with license suspended; court procedures; assistant judges; interpreters for persons with limited English proficiency; picketing at funerals

This act addresses a number of different topics related to motor vehicles and court procedures.

The act recriminalizes operating a motor vehicle with a suspended license under certain circumstances. Under prior law such offenses were civil violations prosecuted in the judicial bureau. The act makes the offense criminal if it is committed for the sixth or subsequent time and if the five prior offenses occurred after July 1, 2003. The act permits an enforcement officer to remove the license plates from any vehicle which is being operated by a person with a suspended license, and authorizes the judicial bureau to institute civil contempt proceedings against a person who has failed to pay a fine imposed for a traffic violation.

The act provides all assistant judges with jurisdiction to hear and decide cases involving civil ordinance and traffic violations, both in the county where the assistant judge presides and in other counties. The act also provides assistant judges in Bennington County with jurisdiction to hear small claims cases.

This act prohibits an interpreter from disclosing or testifying about: (1) a communication made to the interpreter while he or she is acting as an interpreter for a person with limited English proficiency; or (2) any information obtained by the interpreter while acting in his or her capacity as an interpreter for a person with limited English proficiency. The prohibition on disclosure does not apply if the services of the interpreter were sought or obtained to enable or aid anyone to commit or plan to commit what the person with limited English proficiency knew or reasonably should have known to be a crime or fraud. A person with limited English proficiency is defined as a person who does not speak English as his or her primary language and who has a limited ability to read, write, speak, or understand English.

The act makes it a misdemeanor offense for a person to disturb or attempt to disturb a funeral service by engaging in picketing within 100 feet of the service within one hour prior to and two hours following the publicly announced time of the commencement of the service. A funeral service is defined as the ceremonies, rituals, and memorial services held at a church, mortuary, cemetery, or home in connection with the burial or cremation of a dead person.

Effective Date: May 20, 2006, except for sections 3, 4, and 5 related to remedies for failure to pay fines imposed for traffic violations, which takes effect on September 1, 2006.

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT164.HTM

ACT NO. 164

(H.480)

Regulated drugs; precursor drugs of methamphetamine

This act places restrictions on the possession and sale of ephedrine, pseudoephedrine, and phenylpropanolamine, drugs which are used in the manufacture of methamphetamine. These drugs, sometimes called methamphetamine precursors, are present in many commonly used cold and allergy medications.

The act prohibits any person from possessing any of the precursors with the intent of use for the manufacture of methamphetamine or another controlled substance. The act provides that any product sold at retail which contains one of the precursor drugs must be maintained in a locked display case or behind the counter out of the public’s reach, and prohibits a retail establishment from knowingly selling to a person any drug product containing more than 3.6 grams of the precursor drugs. Violations of the prohibition on possession of precursors with the intent to manufacture methamphetamine are criminal offenses, while violations of the retail restrictions on drug products containing methamphetamine precursors are civil offenses.

The act also requires the department of health to develop a publicity and education program to explain the need for change in public access to methamphetamine precursors.

Effective Date: September 30, 2006

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT193.HTM

ACT NO. 193

(H.373)

Court procedure; orders against stalking and sexual assault;

no contact orders; victims’ rights study

This act has four distinct parts: 1) establishment of procedures for obtaining orders against stalking or sexual assault; 2) express authority for the court to include instructions on the care and custody of pets in abuse prevention orders; 3) expansion of no contact orders for criminal defendants; and 4) creation of a committee to study victims’ rights.

The act creates a process for obtaining an order against stalking or sexual assault that is closely modeled on the procedures for obtaining a relief for abuse order. A person, other than a family or household member as defined in 15 V.S.A. § 1101(2), may seek an order against stalking or sexual assault on behalf of him- or herself or his or her children by filing a complaint in superior court. Family and household members may obtain an abuse prevention order pursuant to Title 15 to restrain such conduct. The plaintiff has the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff. The definition of stalking for purposes of the civil order is slightly different from the definition of stalking for criminal purposes. Stalking for civil orders includes threatening behavior directed at the plaintiff or the plaintiff’s family, while the criminal definition includes harassing. “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A. § 3252, or aggravated sexual assault as defined in 13 V.S.A. § 3253, and that the plaintiff was the victim of the offense.

At the final hearing, if the court finds by a preponderance of the evidence that the defendant has stalked the plaintiff, has been convicted of sexually assaulting the plaintiff, or has sexually assaulted the plaintiff and there is a danger of the defendant further harming the plaintiff, the court shall order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both. Proof of danger of future harm is only required if the court finds that the defendant sexually assaulted the plaintiff, but he or she was never convicted of the offense.

At the hearing for emergency relief, proof of conviction or of future harm is not required, and the court need only find by a preponderance of the evidence that the defendant has stalked or sexually assaulted the plaintiff. Orders may be issued ex parte, and a final hearing on the matter must be held within 10 days.

Codifying current practice, the act requires that plaintiffs submit affidavits in support of their complaint and are therefore subject to the penalties of false swearing for false statements alleging stalking or sexual assault when seeking an order.

Upon conviction for a violation of an order against stalking or sexual assault, the court may order the defendant to participate in mental health counseling or sex offender treatment approved by the department of corrections. The defendant is required to pay all or part of the costs of the counseling unless the court finds that the defendant is unable to do so.

With respect to temporary emergency abuse prevention orders, the act permits the court to require the defendant to refrain from cruelly treating as defined in 13 V.S.A. § 352 or from 352a or from killing any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household. In the final order, the court may include language concerning the possession, care, and control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household.

Section 10 of the act permits the court to order that a defendant not contact or cause to be contacted by a victim or potential witness. The order takes effect immediately, regardless of whether the defendant is incarcerated or released. Previously, the order could only address harassment by the defendant. Section 11 of the act clarifies that the general assembly does not intend to restrict attorneys who are representing criminal defendants from contacting witnesses or the alleged victim in cases for which no contact orders have been issued.

Finally, the act creates a study committee for the purpose of reviewing and addressing the rights of victims under current law to facilitate better enforcement of such rights and to consider specially the following issues:

(1) scheduling and continuances of court hearings as they relate to victims;

(2) the victim’s input with plea agreements and sentencing recommendations;

(3) victim notification by the department of corrections and the parole

board; and

(4) the role of the victim at parole board hearings. The committee consists of 15 members and the center for crime victim services provides professional and administrative support for the committee.

The committee will present its findings and recommendations, including proposals for legislative action, to the general assembly no later than January 15, 2007.

Effective Date: The sections of the act that address orders against stalking and sexual assault and abuse prevention orders take effect October 1, 2006. The rest of the act takes effect July 1, 2006.

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT087.HTM

NO. 87. AN ACT RELATING TO GOOD TIME.

(S.248)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. PROSPECTIVE AWARD OF GOOD TIME

Notwithstanding any provision of law to the contrary, each individual convicted of a crime committed on or before June 30, 2005 who was on conditional reentry or supervised community service on or after that date shall be entitled to the prospective award of good time pursuant to Sec. 2(b) of No. 63 of the Acts of 2005.

Sec. 2. 28 V.S.A. § 726 is amended to read:

§ 726. REDUCTION OF SENTENCE

Each day an offender is supervised in a conditional reentry program shall be counted as one day served for the total effective sentence. ~~The minimum and maximum terms of the offender’s total effective sentence shall not be subject to any reductions for behavior as provided for in section 811 of this title.~~

Sec. 3. EFFECTIVE DATE

This act shall take effect on passage and shall apply retroactively from July 1, 2005.

Approved: February 8, 2006

NO. 179. AN ACT RELATING TO INSURANCE FRAUD.

(H.150)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 13 V.S.A. § 2031 is added to read:

§ 2031. INSURANCE FRAUD

(a) Definitions. As used in this section:

(1) “Conceal” means to take affirmative action intended to prevent others from discovering information. Mere failure to disclose information does not constitute concealment.

(2) “Insurance policy” has the same meaning as in 8 V.S.A. § 4722(3).

(3) “Insurer” has the same meaning as in 8 V.S.A. § 4901(2).

(4) “Person” means a natural person, company, corporation, unincorporated association, partnership, professional corporation, agency of government, or any other entity.

(b) Fraudulent insurance act. No person shall, with intent to defraud:

(1) present or cause to be presented a claim for payment or benefit, pursuant to any insurance policy, that contains false representations as to any material fact or which conceals a material fact; or

(2) present or cause to be presented any information which contains false representations as to any material fact or which conceals a material fact concerning the solicitation for sale of any insurance policy or purported insurance policy, an application for certificate of authority, or the financial condition of any insurer.

(1) if the benefit wrongfully obtained or the loss suffered by any person as a result of the violation has a value of less than $900.00, be imprisoned for not more than six months or fined not more than $5,000.00, or both; or

(2) if the benefit wrongfully obtained or the loss suffered by any person as a result of the violation has a value of more than $900.00, be imprisoned for not more than five years or fined not more than $10,000.00, or both; or

(3) for a second or subsequent offense, regardless of the value of the benefit wrongfully obtained, be imprisoned not more than five years or fined not more than $20,000.00, or both.

(d) Administrative action. Upon the conviction of a practitioner for a violation of subsection (b) of this section, the prosecutor shall inform the appropriate licensing authority. Any victim may notify the appropriate licensing authorities in this state and any other jurisdiction in which the practitioner is licensed of the conviction.

(e) This section shall not be construed to limit or restrict prosecution under any other applicable law.

(f) Immunity. No insurer or insurance professional acting in good faith and furnishing or disclosing information to the appropriate law enforcement official shall be subject to civil liability for libel, slander, or any other cause of action arising from the furnishing or disclosing of such information, except if the information is furnished solely to obtain an advantage in connection with a claim that will be, is being, or has been filed.

(g) This section shall not apply to workers' compensation fraud. Cases involving workers' compensation fraud shall be prosecuted under section 2024 of this title.

(h) The public policy of this state is that the standards of this section shall not apply or be introduced into evidence in any civil or administrative proceeding, whether to argue public policy, materiality, or for any other purpose.

Sec. 2. 8 V.S.A. chapter 130 is added to read:

Chapter 130. Insurance Fraud

§ 4750. Insurer Anti-Fraud Plans

(a) Every insurer with direct written premiums shall prepare, implement, and maintain an insurance anti-fraud plan. Each insurer’s anti-fraud plan shall outline specific procedures, appropriate to the type of insurance the insurer writes in this state, to:

(1) Prevent, detect, and investigate all forms of insurance fraud, including fraud involving the insurer’s employees or agents; fraud resulting from misrepresentations in the application, renewal, or rating of insurance policies; claims fraud; and security of the insurer’s data processing systems.

(2) Educate appropriate employees on fraud detection and the insurer’s anti-fraud plan.

(3) Provide for the hiring of or contracting for fraud investigators.

(4) Report insurance fraud to appropriate law enforcement and regulatory authorities in the investigation and prosecution of insurance fraud.

(5) Where appropriate, pursue restitution for financial loss caused by insurance fraud.

(6) Ensure that applicable state and federal privacy laws are complied with and that the confidential personal and financial information of consumers and insureds is protected.

(7) Comply with such other procedures as the commissioner may require by rule.

(b) The commissioner may require an insurer to file annually its anti-fraud plan with the department and an annual summary of the insurer’s anti-fraud activities and results.

(c) This section confers no private rights of action. This section does not affect private rights of action conferred under other laws or court decisions.

(d) Enforcement. Notwithstanding any other provision of this title, the following are the exclusive monetary penalties for violation of this section. Insurers that fail to prepare, implement, maintain, or submit to the department of banking, insurance, securities, and health care administration an insurance anti-fraud plan are subject to a penalty of $500.00 per day, not to exceed $10,000.00.

(e)

Sec. 3. 1 V.S.A. § 317(c)(36) is added to read:

(36) anti-fraud plans and summaries submitted by insurers to the department of banking, insurance, securities, and health care administration for the purposes of complying with 8 V.S.A. § 4750.

Sec. 4. EFFECTIVE DATE

This act shall take effect July 1, 2006, except for Sec. 2, which shall take effect January 1, 2007.

Approved: May 24, 2006

NO. 148. AN ACT RELATING TO PROFESSIONS AND OCCUPATIONS.

(H.871)

It is hereby enacted by the General Assembly of the State of Vermont:

* * * General Provisions * * *

Sec. 1. 3 V.S.A. § 121(2) is amended to read:

(2) “Licensing board” or “board” refers to the boards, commissions and professions listed in section 122 of this title and, in the case of disciplinary matters or denials of licensure, either an administrative law officer appointed under subsection 129(j) of this title or the director in advisor professions. Notwithstanding statutory language to the contrary, this subchapter shall apply to all those boards.

Sec. 2. 3 V.S.A. § 127 is amended to read:

§ 127. UNAUTHORIZED PRACTICE

(a) When the office receives a complaint of unauthorized practice, the director shall refer the complaint to the appropriate board for investigation.

(b) A person practicing a regulated profession without authority may, upon the complaint of the attorney general or a state’s attorney or an attorney assigned by the office of professional regulation, be enjoined there from by the superior court where the violation occurred or the Washington County superior court and may be assessed a civil penalty of not more than $1,000.00. The attorney general or an attorney assigned by the office of professional regulation may elect to bring an action seeking only a civil penalty of not more than $1,000.00 for practicing a regulated profession without authority before the board having regulatory authority over the profession. Hearings shall be conducted in the same manner as disciplinary hearings. A civil penalty imposed by a board or administrative law officer under this subsection shall be deposited in the professional regulatory fee fund established in section 124 of this title for the purpose of providing education and training for board members and advisor appointees. The director shall detail in the annual report receipts and expenses from these civil penalties.

(c) In addition to other provisions of law, unauthorized practice shall be punishable by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Prosecution may occur upon the complaint of the attorney general or a state’s attorney or an attorney assigned by the office of professional regulation under this section and shall not act as a bar to civil or administrative proceedings involving the same conduct.

(d) A person practicing a licensed profession without authority shall not institute any proceedings in this state for the enforcement of any right or obligation if at the time of the creation of the right or obligation it the unlicensed person was acting without authority.

~~(d)~~(e) The provisions of this section shall be in addition to any other remedies or penalties for unauthorized practice established by law.

Sec. 3. 3 V.S.A. § 129(a) is amended to read:

(a) In addition to any other provisions of law, a board may exercise the following powers:

* * *

(5) Discipline any licensee or refuse to license any person who has had a license revoked, suspended, limited, conditioned, or otherwise disciplined by a licensing agency in another jurisdiction for ~~an offense~~ conduct which would constitute unprofessional conduct in this state, or has surrendered a license while under investigation for unprofessional conduct.

* * *

(12) ~~Treat as incomplete any license application submitted with a check subsequently returned for insufficient funds~~ Waive or modify continuing education requirements for persons on active duty in the United States armed forces.

Sec. 4. 3 V.S.A. § 129a(a) is amended to read:

(a) In addition to any other provision of law, the following conduct by a licensee constitutes unprofessional conduct. When that conduct is by an applicant or person who later becomes an applicant, it may constitute grounds for denial of a license or other disciplinary action. Any one of the following items, or any combination of items, whether or not the conduct at issue was committed within or outside the state, shall constitute unprofessional conduct:

* * *

(11) Failing to report to the office a conviction of any felony or any offense related to the practice of the profession in a Vermont district court, a Vermont superior court, a federal court, or a court outside Vermont within 30 days.

* * *

(13) Performing treatments or providing services which the licensee is not qualified to perform or which are beyond the scope of the licensee’s education, training, capabilities, experience, or scope of practice.

(14) Failing to report to the office within 30 days a change of name or address.

Sec. 4a. 13 V.S.A. § 2901 is amended to read:

§ 2901. PUNISHMENT FOR PERJURY

A person who, being lawfully required to depose the truth in a proceeding in a court of justice or in a contested case before a state agency pursuant to chapter 25 of Title 3, commits perjury shall be imprisoned not more than ~~fifteen~~ 15 years and fined not more than $10,000.00, or both.

Sec. 4b. 13 V.S.A. § 2901a is amended to read:

§ 2901a. PERJURY BY INCONSISTENT STATEMENTS

A person is also guilty of perjury and may be sentenced under section 2901 of this title if in one or more proceedings before or ancillary to a court or grand jury or in a contested case before a state agency pursuant to chapter 25 of Title 3:

(1) he or she knowingly makes two or more statements under oath or affirmation which are material in the proceedings;

(2) the statements are inconsistent to the degree that the person necessarily believed one of them to be false; and

(3) both statements were made within the period of the statute of limitations.

Sec. 4c. 13 V.S.A. § 2906 is amended to read:

§ 2906. INFORMATION AND INDICTMENT FOR PERJURY

It shall be sufficient in an information or indictment for perjury or subornation of perjury to set forth the substance of the offense charged, by what court or state agency and by whom the oath was administered, and that such court, state agency, or person had competent authority to administer the same, without setting forth, other than aforesaid, the record or other proceedings, or the commission or authority of such court, state agency, or person before whom the perjury was committed.

Sec. 4d. 13 V.S.A. § 3015 is amended to read:

§ 3015. OBSTRUCTION OF JUSTICE

Whoever corruptly, or by threats or force, or by any threatening letter or communication, intimidates or impedes any witness, grand or petit juror, or officer in or of any court or agency, in a contested case, of the state of Vermont, or causes bodily injury to such person or intentionally damages the property of such person on account of such person's attendance at, deliberation at, or performance of his or her official duties in connection with a matter already heard, presently being heard or to be heard before any court or agency, in a contested case, of the state of Vermont, or corruptly or by threats or force or by any threatening letter or communication, obstructs or impedes, or endeavors to obstruct or impede the due administration of justice, shall be imprisoned not more than five years or fined not more than $5,000.00, or both. For the purposes of this section, “agency” and “contested case” shall have the meanings set forth in subsection 801(b) of Title 3.

Sec. 4e. REPEAL

13 V.S.A. § 2907 (competency of perjurer as witness) is repealed.

Sec. 4f. 12 V.S.A. § 1608 is amended to read as follows:

A person shall not be incompetent as a witness in any court, matter or proceeding by reason of ~~his~~ the person’s conviction of a crime ~~other than perjury, subornation of perjury, or endeavoring to incite or procure another to commit the crime of perjury~~. The conviction of a crime involving moral turpitude within ~~fifteen~~ 15 years shall be the only crime admissible in evidence given to affect the credibility of a witness.

NO. 177. AN ACT RELATING TO SEXUAL EXPLOITATION AND TO ISSUES CONCERNING THE DEPARTMENT OF CORRECTIONS.

(S.256)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 13 V.S.A. § 3257 is added to read:

§ 3257. SEXUAL EXPLOITATION OF AN INMATE

(a) No correctional employee, contractor, or other person providing services to offenders on behalf of the department of corrections or pursuant to a court order or in accordance with a condition of parole, probation, supervised community sentence, or furlough shall engage in a sexual act with a person who the employee, contractor, or other person providing services knows:

(1) is confined to a correctional facility; or

(2) is being supervised by the department of corrections while on parole, probation, supervised community sentence, or furlough, where the employee, contractor, or other service provider is currently engaged in a direct supervisory relationship with the person being supervised. For purposes of this subdivision, a person is engaged in a direct supervisory relationship with a supervisee if the supervisee is assigned to the caseload of that person.

(b) A person who violates subsection (a) of this section shall be imprisoned for not more than five years or fined not more than $10,000.00, or both.

Sec. 2. 28 V.S.A. § 853 is amended to read:

§ 853. PUNISHMENT; MAINTENANCE OF RECORDS;

RECOMMENDATION OF TRANSFER

(a)(1) Except in serious cases as provided in subdivision (2) of this subsection, punishment for a breach of the rules and regulations of the facility shall consist of deprivation of privileges. ~~In cases of~~

(2) Serious breaches of the rules and regulations shall include assault, escape, or attempt to escape, ~~or other serious breach of the rules,~~ and other serious breaches. In cases involving a serious breach, the disciplinary committee may recommend to the supervising officer of the facility, ~~and he~~ who may then order, other forms of discipline in addition to or as substitution for a loss of privileges, that any portion of an inmate’s reduction of term for good behavior be forfeited or withheld in accordance with section 812 of this title. In cases involving breach of the rules and regulations of the facility that result. If the serious breach results in damage to state-owned property, the disciplinary committee may fix ~~the~~ an amount of restitution or reparation, which shall not exceed an amount the ~~offender~~ inmate can or will be able to pay, and shall fix the manner of performance. Other forms of discipline for a serious breach of the rules may include:

(A) Recommendation by the disciplinary committee and by the supervising officer ~~also may be made~~ to the commissioner that the inmate be transferred to another facility.

(B) ~~For serious breach of the rules the disciplinary committee~~ Segregation, in accordance with the regulations of the department, ~~may also recommend, and the supervising officer may order, that an inmate be confined~~ in a cell or room, apart from the accommodations provided for inmates who are participating in programs of the facility.; provided:

~~(1)~~(i) The period of such ~~confinement~~ segregation shall not exceed ~~thirty~~ 30 days consecutively;

~~(2)~~(ii) The inmate shall be supplied with a sufficient quantity of wholesome and nutritious food, which shall be of the same quantity and nutritional quality as that provided to the general population of inmates at the facility;

~~(3)~~(iii) Adequate sanitary and other conditions required for the health of the inmate shall be maintained; and

~~(4)~~(iv) The supervising officer of the facility shall comply with any recommendation that may be made by the ~~institution’s~~ facility’s physician for measures with respect to dietary needs or conditions of ~~confinement~~ segregation of each inmate required to maintain the health of the inmate.

(b) No cruel, inhuman, or corporal punishment shall be used on any inmate, nor is the use of force on any inmate justifiable except as provided by law.

(c) The supervising officer of any facility shall maintain a record of all breaches of rules, of the disposition of each case, and of the punishment, if any, for each breach. Each breach of the rules by an inmate shall be entered in the file of the inmate, together with the disposition or punishment therefor.

Sec. 3. 28 V.S.A. § 102(c)(19) is amended to read:

(19) If a treaty in effect between the United States and ~~Canada~~ a foreign country provides for the transfer or exchange of a convicted and sentenced offender to the country of which the offender is a citizen or national, the commissioner may, with the written consent of such offender obtained only after the opportunity to consult with counsel, and in accordance with the terms of the treaty, consent to the transfer or exchange of any such offender and take any other action necessary to initiate the participation of the state in the treaty.

Sec. 4. 28 V.S.A. § 701a is amended to read:

§ 701a. ~~SOLITARY CONFINEMENT;~~ SEGREGATION OF INMATES

WITH A SERIOUS MENTAL ~~HEALTH DISORDER~~ ILLNESS

(a) The commissioner shall ~~promulgate~~ adopt rules pursuant to chapter 25 of Title 3 regarding the classification, treatment, and ~~maximum length of stay in solitary confinement~~ segregation of an inmate with a serious mental illness as defined in subdivision 906(1) of this title; provided that the length of stay in segregation for an inmate with a serious mental illness:

(1) Shall not exceed 15 days if the inmate is segregated for disciplinary reasons.

(2) Shall not exceed 30 days if the inmate requested the segregation, except that the inmate may remain segregated for successive 30-day periods following assessment by a qualified mental health professional and approval of a physician for each extension.

(3) Shall not exceed 30 days if the inmate is segregated for any reason other than the reasons set forth in subdivision (1) or (2) of this subsection, except that the inmate may remain segregated for successive 30-day periods following a due process hearing for each extension, which shall include assessment by a qualified mental health professional and approval of a physician.

(b) On or before October 1, 2001, the agency of human services, department of corrections, shall enact an emergency rule implementing the directive of this section. The emergency rule shall specifically address the obligations and responsibilities of the department of corrections relative to the solitary confinement of a male or female inmate with a serious mental illness as defined in section 906 of this title. For purposes of this title, and despite other names this concept has been given in the past or may be given in the future, “segregation” means a form of separation from the general population which may or may not include placement in a single occupancy cell and which is used for disciplinary, administrative, or other reasons.

(c) On or before the 15th day of each month, the department’s health services director shall provide to the joint legislative corrections oversight committee a report that, while protecting inmate confidentiality, lists each inmate who was in segregation during the preceding month by a unique indicator and identifies the reason the inmate was placed in segregation, the length of the inmate’s stay in segregation, whether the inmate has a serious mental illness, or is otherwise on the department's mental health roster, and, if so, the nature of the mental illness. The report shall also indicate any incident of self harm or attempted suicide by inmates in segregation. The committee chair shall ensure that a copy of the report is forwarded to the Vermont defender general and the executive director of Vermont Protection and Advocacy, Inc. on a monthly basis.

Sec. 5. JOINT LEGISLATIVE CORRECTIONS OVERSIGHT

COMMITTEE

During the 2006 interim, the joint legislative corrections oversight committee shall explore the current law and practices concerning the segregation of inmates, including inmates with a cognitive impairment and inmates with a serious mental illness or who are otherwise on the mental health roster. The committee’s work shall include