80
th Legislative Session _ 2005
Committee: Senate Judiciary
Tuesday, February 08, 2005
P - Present
E - Excused
A - Absent
Roll Call
P Gray
P Knudson
P Koetzle
P Koskan
P Moore
P Schoenbeck, Vice-Chair
P Abdallah, Chair
OTHERS PRESENT: See Original Minutes
The meeting was called to order by Senator Gene Abdallah, Chair
MOTION:
TO APPROVE THE MINUTES OF MONDAY, FEBRUARY 7, 2005
Moved by: Koskan
Second by: Knudson
Action: Prevailed by voice vote.
SB 43: revise the South Dakota criminal code.
MOTION:
AMEND SB 43
43ra
On page
29 of the printed bill,
delete line
24
, and insert:
"
Section 100. That
§
22-34-27
be amended to read as follows:
22-34-27.
Any person who, with intent to cause damage, deposits, throws, or propels any
substance upon any highway, roadway, runway, or railroad tracks, or at any vehicle while such
vehicle is either in motion or stationary, is guilty of a Class 1 misdemeanor.
".
On page
30
,
delete lines
1 to 3
, inclusive.
Moved by: Schoenbeck
Second by: Moore
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rc
On page
60,
line 4 of the printed bill,
overstrike "
jailer,
"
.
On page
60
,
line 4,
delete "
management
"
and insert "
medical technician
".
On page
60
,
line 5,
delete "
personnel
"
.
On page
61
,
line 2,
delete "
,
jailer
"
and insert "
jailer
".
On page
61
,
line 3,
delete "
management personnel
"
and insert "
medical technician
".
On page
61
,
line 13,
delete "
,
jailer
"
and insert "
jailer
".
On page
61
,
line 14,
delete "
management personnel
"
and insert "
medical technician
".
On page
61
,
line 15,
delete "
management personnel
"
and insert "
medical technician
".
On page
61
,
line 21,
delete "
,
jailer
"
and insert "
jailer
".
On page
61
,
line 21,
delete "
management personnel
"
and insert "
medical technician
".
On page
61
,
line 22,
delete "
jailer,
"
.
On page
61
,
line 22,
delete "
management personnel
"
and insert "
medical technician
".
Moved by: Schoenbeck
Second by: Knudson
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rd
On page
75,
line 14 of the printed bill,
delete "
shall
may
"
and insert "shall".
Moved by: Schoenbeck
Second by: Knudson
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rg
On page
12 of the printed bill,
delete lines
8 to 10
, inclusive, and insert:
"
Section 38. That
§
22-29-9
be amended to read as follows:
22-29-9.
So much of an oath of office as relates to future performance of official duty is not
sufficient to constitute perjury or subornation.
".
Moved by: Schoenbeck
Second by: Knudson
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43ri
On page
28 of the printed bill,
delete lines
15 to 19
, inclusive, and insert:
"
Section 96. That
§
22-33-10
be amended to read as follows:
22-33-10.
Any person who intentionally and without authorization of the person in charge of a
place of confinement, sets fire to, burns, or causes to be burned any material, object, or substance
within a structure knowing there is lawfully confined therein any person, is guilty of a
Class 4
Class
6
felony.
".
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rj
On page
148,
after line 1 of the printed bill, insert:
"
Section 447. That chapter
22-19
be amended by adding thereto a NEW SECTION to read as
follows:
Any person who unlawfully holds or retains another person with any of the following purposes:
(1) To hold for ransom or reward, or as a shield or hostage; or
(2) To facilitate the commission of any felony or flight thereafter; or
(3) To inflict bodily injury on or to terrorize the victim or another; or
(4) To interfere with the performance of any governmental or political function; or
(5) To take or entice away a child under the age of fourteen years with intent to detain and
conceal such child;
is guilty of kidnapping in the second degree. Kidnapping in the second degree is a Class 3 felony,
unless the person has inflicted serious bodily injury on the victim in which case it is aggravated
kidnapping in the second degree and is a Class 1 felony.".
On page
34
,
line 21,
after "
kidnapping
"
insert "
in the first degree
".
On page
34
,
line 21,
after "
Kidnapping
"
insert "
in the first degree
".
On page
34
,
line 23,
after "
kidnapping
"
insert "
in the first degree
".
Moved by: Schoenbeck
Second by: Knudson
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rk
On page
95,
line 22 of the printed bill,
delete "
Class 6
"
and insert "Class 5".
Moved by: Schoenbeck
Second by: Knudson
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rl
On page
109,
line 19 of the printed bill,
delete "
due
"
.
On page
109
,
line 20,
delete "
to mental disease or defect,
"
.
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rm
On page
110,
line 8 of the printed bill,
overstrike "
convicted of a crime
"
.
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rn
On page
121 of the printed bill,
delete lines
23 and 24
, and insert:
"
Section 381. That
§
22-5-7
be amended to read as follows:
22-5-7.
A morbid propensity to commit prohibited acts existing in the mind of a person who is
not shown to have been incapable of knowing the wrongfulness of such acts forms no defense to a
prosecution therefor.
".
On page
122
,
delete lines
1 and 2
.
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43ro
On page
63 of the printed bill,
delete lines
22 to 24
, inclusive, and insert:
"
Section 206.That
§
22-11-14
be amended to read as follows:
22-11-14.
As used in this chapter, the term, judicial officer, includes any referee, arbitrator, judge,
hearing officer, or any other person authorized by law to hear or determine a controversy.
".
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rq
On page
42 of the printed bill,
delete lines
23 and 24
, and insert:
"
Section 134. That
§
22-41-1.3
be amended to read as follows:
22-41-1.3.
If
a
any
person, who has been accused of a violation of § 22-41-1 or 22-41-1.2,
restores or returns the property allegedly obtained as consideration or makes payment of the check
before an indictment or information is laid before a magistrate, such fact may be considered in
mitigation of punishment. The restoration or return of the property or payment of the check is not
a defense to a violation of § 22-41-1 or 22-41-1.2, nor may it be considered by the finder of fact
and
the costs and expenses provided for in
§
57A-3-421 to the holder within thirty days of the mailing or
delivery of the notice of dishonor, no criminal prosecution may occur in regard to the check
.
".
On page
43
,
delete lines
1 to 5
, inclusive.
On page
44
,
line 21,
overstrike "
five days, or eight
"
and insert "
thirty
".
On page
148
,
after line 1, insert:
"
Section 442. That chapter
22-30A
be amended by adding thereto a NEW SECTION to read as
follows:
If the drawer of a check does not pay the fees and costs provided for in
§
57A-3-421 and the
amount of the check to the holder of the check within thirty days of the mailing of the notice of
dishonor, the drawer shall owe to the holder of the check an additional civil penalty equal to twice
the amount of the check. The state's attorney may then prosecute the dishonor.
Section 443. The code counsel shall, pursuant to section 139 of this Act, place section 442 of this
Act, between
§
22-41-3.1 and
§
22-41-3.2 in chapter 22-30A.
Section 444. That
§
22-41-3.2
be amended to read as follows:
22-41-3.2.
The notice of dishonor required by § 22-41-3.1 shall be in substantially the following
form:
Date _______________________________________________________________________
Name of issuer _____________________________________________________________
Bank on which drawn ________________________________________________________
Date of check ______________________________________________________________
Amount of check ____________________________________________________________
Merchant holding
Holder of the
check __________________________________________________
You are hereby notified that your check described above has been dishonored and is now being
held by the above
merchant
holder
for a period of
five
thirty
days from the
above
date
of the mailing
of this notice
. Civil liability incurred by a check issuer pursuant to
§
SDCL
57A-3-420 is not a
defense to a violation of this chapter.
If you do not pay the amount of the check and the costs and
expenses provided for by SDCL 57A-3-421 within thirty days of the mailing of this notice of dishonor
to you, your check will be delivered to the state's attorney for criminal prosecution for theft, and you
will be liable to the holder of the check for an additional civil penalty of an amount equal to twice the
amount of the check in addition to the amount of the check and the costs and expenses provided for
by SDCL 57A-3-421.
".
On page
45
,
line 8,
after "
notice.
"
insert "
However, if the insufficient funds check or no account
check is paid by the drawer to the holder, along with the costs and expenses provided for in
§
57A-3-
421, within the thirty days after the notice is mailed or delivered to the drawer, the check may not be
prosecuted.
".
On page
148
,
after line 1, insert:
"
Section 445. That chapter
22-30A
be amended by adding thereto a NEW SECTION to read as
follows:
The maker, drawer, or issuer is not criminally liable or civilly liable for damages and costs
specified in this chapter if:
(1) The account contained sufficient funds or credit to cover the check, draft, or order at the
time the check, draft, or order was issued, plus all other checks, drafts, and orders on the
account then outstanding and unpaid; or
(2) The check, draft, or order was not paid because a paycheck, deposited in the account in
an amount sufficient to cover the check, draft, or order, was not paid upon presentation;
or
(3) Funds sufficient to cover the check, draft, or order were garnished, attached, or setoff, and
the maker, drawer, or issuer had no notice of such garnishment, attachment, or setoff at
the time the check, draft, or order was issued; or
(4) The maker of the check, draft, or order was not competent or of full age to enter into a
legal contractual obligation at the time the check, draft, or order was issued; or
(5) The making of the check, draft, or order was induced by fraud or duress; or
(6) The transaction which gave rise to the obligation for which the check, draft, or order was
given lacked consideration or was illegal.
Section 446. That chapter
22-30A
be amended by adding thereto a NEW SECTION to read as
follows:
If the same person is the maker, drawer, or issuer of two or more checks, drafts, or orders, such
instruments may be combined. An action for their recovery pursuant to this chapter may be brought
in any county in which one of the dishonored checks, drafts, or orders were issued or in the county
in which the check writer resides. A cause of action under this chapter may be brought in small claims
court, if the amount of the demand does not exceed the jurisdiction of that court, or in any other
appropriate court.
Section 447. That
§
§
21-57-1 to 21-57-7, inclusive, be repealed.".
Moved by: Schoenbeck
Second by: Gray
Action: Was not acted on.
MOTION:
AMEND THE AMENDMENT
43raf
On the pending amendment, 43rq, delete section 447.
Moved by: Knudson
Second by: Koskan
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rah
On page
42 of the printed bill,
delete lines
23 and 24
, and insert:
"
Section 134. That
§
22-41-1.3
be amended to read as follows:
22-41-1.3.
If
a
any
person, who has been accused of a violation of § 22-41-1 or 22-41-1.2,
restores or returns the property allegedly obtained as consideration or makes payment of the check
before an indictment or information is laid before a magistrate, such fact may be considered in
mitigation of punishment. The restoration or return of the property or payment of the check is not
a defense to a violation of § 22-41-1 or 22-41-1.2, nor may it be considered by the finder of fact
and
the costs and expenses provided for in
§
57A-3-421 to the holder within thirty days of the mailing or
delivery of the notice of dishonor, no criminal prosecution may occur in regard to the check
.
".
On page
43
,
delete lines
1 to 5
, inclusive.
On page
44
,
line 21,
overstrike "
five days, or eight
"
and insert "
thirty
".
On page
148
,
after line 1, insert:
"
Section 442. That chapter
22-30A
be amended by adding thereto a NEW SECTION to read as
follows:
If the drawer of a check does not pay the fees and costs provided for in
§
57A-3-421 and the
amount of the check to the holder of the check within thirty days of the mailing of the notice of
dishonor, the drawer shall owe to the holder of the check an additional civil penalty equal to twice
the amount of the check. The state's attorney may then prosecute the dishonor.
Section 443. The code counsel shall, pursuant to section 139 of this Act, place section 442 of this
Act, between
§
22-41-3.1 and
§
22-41-3.2 in chapter 22-30A.
Section 444. That
§
22-41-3.2
be amended to read as follows:
22-41-3.2.
The notice of dishonor required by § 22-41-3.1 shall be in substantially the following
form:
Date _______________________________________________________________________
Name of issuer _____________________________________________________________
Bank on which drawn ________________________________________________________
Date of check ______________________________________________________________
Amount of check ____________________________________________________________
Merchant holding
Holder of the
check __________________________________________________
You are hereby notified that your check described above has been dishonored and is now being
held by the above
merchant
holder
for a period of
five
thirty
days from the
above
date
of the mailing
of this notice
. Civil liability incurred by a check issuer pursuant to
§
SDCL
57A-3-420 is not a
defense to a violation of this chapter.
If you do not pay the amount of the check and the costs and
expenses provided for by SDCL 57A-3-421 within thirty days of the mailing of this notice of dishonor
to you, your check will be delivered to the state's attorney for criminal prosecution for theft, and you
will be liable to the holder of the check for an additional civil penalty of an amount equal to twice the
amount of the check in addition to the amount of the check and the costs and expenses provided for
by SDCL 57A-3-421.
".
On page
45
,
line 8,
after "
notice.
"
insert "
However, if the insufficient funds check or no account
check is paid by the drawer to the holder, along with the costs and expenses provided for in
§
57A-3-
421, within the thirty days after the notice is mailed or delivered to the drawer, the check may not be
prosecuted.
".
On page
148
,
after line 1, insert:
"
Section 445. That chapter
22-30A
be amended by adding thereto a NEW SECTION to read as
follows:
The maker, drawer, or issuer is not criminally liable or civilly liable for damages and costs
specified in this chapter if:
(1) The account contained sufficient funds or credit to cover the check, draft, or order at the
time the check, draft, or order was issued, plus all other checks, drafts, and orders on the
account then outstanding and unpaid; or
(2) The check, draft, or order was not paid because a paycheck, deposited in the account in
an amount sufficient to cover the check, draft, or order, was not paid upon presentation;
or
(3) Funds sufficient to cover the check, draft, or order were garnished, attached, or setoff, and
the maker, drawer, or issuer had no notice of such garnishment, attachment, or setoff at
the time the check, draft, or order was issued; or
(4) The maker of the check, draft, or order was not competent or of full age to enter into a
legal contractual obligation at the time the check, draft, or order was issued; or
(5) The making of the check, draft, or order was induced by fraud or duress; or
(6) The transaction which gave rise to the obligation for which the check, draft, or order was
given lacked consideration or was illegal.
Section 446. That chapter
22-30A
be amended by adding thereto a NEW SECTION to read as
follows:
If the same person is the maker, drawer, or issuer of two or more checks, drafts, or orders, such
instruments may be combined. An action for their recovery pursuant to this chapter may be brought
in any county in which one of the dishonored checks, drafts, or orders were issued or in the county
in which the check writer resides. A cause of action under this chapter may be brought in small claims
court, if the amount of the demand does not exceed the jurisdiction of that court, or in any other
appropriate court.".
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rb
On page
49,
line 10 of the printed bill,
after "
when
"
insert "
, including an unborn child
".
On page
50
,
line 6,
after "
person
"
insert "
, including an unborn child
".
On page
50
,
line 20,
after "
person
"
insert "
, including an unborn child,
".
On page
50
,
line 23,
after "
death,
"
insert "
including an unborn child,
".
On page
51
,
line 1,
after "
death,
"
insert "
including an unborn child,
".
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43fa
On page
86 of the printed bill,
delete lines
8 to 11
, inclusive, and insert:
"
22-24-1.1.
A person commits the crime of public indecency if the person,
with an immoral
purpose, exposes his or her anus or genitals in a public place where another may be present who will
be offended or alarmed by the person's act
under circumstances in which that person knows that his
or her conduct is likely to annoy, offend, or alarm some other person does any of the following in a
public place:
(1) Engages in sexual intercourse;
(2) Appears in a state of nudity;
(3) Fondles the genitals of himself or herself; or
(4) Fondles the genitals of another person
.".
Moved by: Schoenbeck
Second by: Gray
Action: Failed by voice vote.
MOTION:
AMEND SB 43
43rh
On page
26,
line 7 of the printed bill,
delete "
specific
"
.
On page
26
,
line 12,
delete "
specific
"
.
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rab
On page
28,
line 21 of the printed bill,
remove the overstrikes from "
intentionally
"
.
On page
28
,
line 21,
delete "
, with specific intent to do so,
"
.
Moved by: Schoenbeck
Second by: Gray
Action: Failed by roll call vote.(3-4-0-0)
Voting Yes: Gray, Koskan, Abdallah
Voting No: Knudson, Koetzle, Moore, Schoenbeck
MOTION:
AMEND SB 43
43raa
On page
33 of the printed bill,
delete lines
17 to 22
, inclusive, and insert:
"
Section
1.
That
§
22-32-19
be amended to read as follows:
22-32-19.
Any person who enters
an automobile or motor truck
a motor vehicle
with intent to
commit any crime
therein
, or remains in
an automobile or motor truck
a motor vehicle
after forming
an intent to commit any crime
therein
is guilty of fourth degree burglary. Fourth degree burglary is
a Class 6 felony.
".
On page
33
,
line 23,
delete everything after "
Section 113.
"
.
On page
33
,
delete line
24
.
On page
34
,
delete lines
1 to 3
, inclusive.
Moved by: Schoenbeck
Second by: Gray
Action: Failed by voice vote.
MOTION:
AMEND SB 43
43rac
On page
96,
line 10 of the printed bill,
remove the overstrikes from "
Class 5
"
.
On page
96
,
line 10,
delete "
Class 6
"
.
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by roll call vote.(5-2-0-0)
Voting Yes: Gray, Koskan, Moore, Schoenbeck, Abdallah
Voting No: Knudson, Koetzle
MOTION:
AMEND SB 43
43rad
On page
46,
line 12 of the printed bill,
delete "
January 1, 2006
"
and insert "July 1, 2006".
Moved by: Schoenbeck
Second by: Gray
Action: Was not acted on.
MOTION:
AMEND THE AMENDMENT
43rag
On the pending amendment, 43rad, delete "July 1, 2006" and insert "May 1, 2006".
Moved by: Schoenbeck
Second by: Koetzle
Action: Failed by voice vote.
ORIGINAL MOTION:
AMEND SB 43
43rad
On page
46,
line 12 of the printed bill,
delete "
January 1, 2006
"
and insert "July 1, 2006".
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rae
On page
142,
line 9 of the printed bill,
after "
counsel
"
insert ", experts,".
On page
142
,
line 14,
after "
conviction
"
insert "or other sentencing document".
Moved by: Schoenbeck
Second by: Gray
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rv
On page
60 of the printed bill,
delete lines
7 to 11
, inclusive, and insert:
"
Section 193. That
§
22-11-3.1
be amended to read as follows:
22-11-3.1.
Any person who, after being lawfully commanded to aid any law enforcement officer
in arresting any person or in retaking any person who has escaped from legal custody, or in executing
any legal process, intentionally refuses, without lawful cause, to aid such officer, is guilty of a Class
2 misdemeanor.
".
Moved by: Koskan
Second by: Abdallah
Action: Was not acted on.
MOTION:
AMEND THE AMENDMENT
43rva
On the pending amendment, 43rv, delete
§
22-11-3.1 and insert:
"22-11-3.1.
Any
Every
person
who
shall
, after being lawfully commanded to aid any law
enforcement officer in arresting any person or in retaking any person who has escaped from legal
custody, or in executing any legal process,
intentionally refuses, without lawful cause, to
aid such
officer
, is guilty of a Class 2 misdemeanor
.".
Moved by: Schoenbeck
Second by: Koskan
Action: Prevailed by voice vote.
MOTION:
AMEND SB 43
43rvb
On page
60 of the printed bill,
delete lines
7 to 11
, inclusive, and insert:
"
Section 193. That
§
22-11-3.1
be amended to read as follows:
22-11-3.1.
Any
Every
person
who
shall
, after being lawfully commanded to aid any law
enforcement officer in arresting any person or in retaking any person who has escaped from legal
custody, or in executing any legal process,
intentionally refuses, without lawful cause, to
aid such
officer
, is guilty of a Class 2 misdemeanor
.
".
Moved by: Koskan
Second by: Abdallah
Action: Failed by roll call vote.(3-4-0-0)
Voting Yes: Koskan, Schoenbeck, Abdallah
Voting No: Gray, Knudson, Koetzle, Moore
MOTION:
AMEND SB 43
43rz
On page
19,
line 22 of the printed bill,
delete "
one thousand
"
and insert "
seven hundred fifty
".
On page
20
,
line 22,
delete "
four
"
and insert "three".
On page
20
,
line 23,
delete "
one thousand
"
and insert "seven hundred fifty".
On page
21
,
line 3,
delete "
four
"
and insert "three".
On page
29
,
line 4,
delete "
four
"
and insert "
three
".
On page
29
,
line 6,
delete "
one thousand
"
and insert "
seven hundred fifty
".
On page
29
,
line 7,
delete "
four
"
and insert "
three
".
On page
29
,
line 9,
delete "
one thousand
"
and insert "
seven hundred fifty
".
Moved by: Koskan
Second by: Gray
Action: Failed by voice vote.
MOTION:
DO PASS SB 43 AS AMENDED
Moved by: Schoenbeck
Second by: Moore
Action: Prevailed by roll call vote.(7-0-0-0)
Voting Yes: Gray, Knudson, Koetzle, Koskan, Moore, Schoenbeck, Abdallah
MOTION:
ADJOURN
Moved by: Schoenbeck
Second by: Knudson
Action: Prevailed by voice vote.
Rena Ortbahn
____________________________
Committee Secretary
Gene G. Abdallah, Chair
../02081700.SJU
Page 1