S-0070.6                   _______________________________________________

 

                                                     SENATE BILL 5069

                              _______________________________________________

 

State of Washington                              53rd Legislature                             1993 Regular Session

 

By Senators A. Smith, Nelson, McCaslin, Quigley and Erwin

 

Read first time 01/11/93.  Referred to Committee on Law & Justice.

 

Revising provisions relating to crimes.


          AN ACT Relating to crimes; amending RCW 9.94A.390, 9A.72.090, 9A.72.100, 9A.72.110, 9A.72.120, 9A.44.083, 9A.44.086, 9A.44.089, 9A.44.093, 9A.44.096, 43.43.754, 43.43.680, and 9.94A.140; creating new sections; repealing RCW 10.19.130; and prescribing penalties.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

                                                   TABLE OF CONTENTS

 

PURPOSE...................................................................................................................................................................................................   2

 

PART I - EXCEPTIONAL SENTENCES............................................................................................................................................   2

 

PART II - WITNESS INTIMIDATION/TAMPERING.....................................................................................................................   5

 

PART III - CHILD MOLESTATION....................................................................................................................................................   8

 

PART IV - DNA IDENTIFICATION....................................................................................................................................................   9

 

PART V - TOXICOLOGIST AS WITNESS........................................................................................................................................ 10

 

PART VI - RESTITUTION.................................................................................................................................................................... 11

 

PART VII - BAIL JUMPING................................................................................................................................................................ 12

 

PART VIII - MISCELLANEOUS......................................................................................................................................................... 12

 

 

                                                            PURPOSE

 

          NEW SECTION.  Sec. 1.  The purpose of this act is to make certain technical corrections and correct oversights discovered only after unanticipated circumstances have arisen.  These changes are necessary to give full expression to the original intent of the legislature.

 

                                         PART I - EXCEPTIONAL SENTENCES

 

          NEW SECTION.  Sec. 101.  The legislature finds that a significant portion of serious criminal offenses are committed by offenders who not only have a history of similar criminal conduct but also pose a significant and continuing threat of engaging in similar criminal activity.  The legislature finds that this future threat to the public safety can only be obviated through incapacitation of the offender.  The legislature finds, therefore, that a determination that a convicted criminal defendant poses a future danger to society is an appropriate aggravating factor to consider when sentencing the defendant outside the standard range for the offense of conviction.  The legislature further finds that a defendant's future dangerousness to society can be determined based upon his or her history of similar misconduct, including predatory behavior, as established by prior criminal convictions or other competent evidence and a finding that the defendant is not amenable to treatment.

 

        Sec. 102.  RCW 9.94A.390 and 1990 c 3 s 603 are each amended to read as follows:

          If the sentencing court finds that an exceptional sentence outside the standard range should be imposed in accordance with RCW 9.94A.120(2), the sentence is subject to review only as provided for in RCW 9.94A.210(4).

          The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence.  The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.

          (1) Mitigating Circumstances

          (a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.

          (b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.

          (c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.

          (d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.

          (e) The defendant's capacity to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law, was significantly impaired (voluntary use of drugs or alcohol is excluded).

          (f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.

          (g) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

          (h) The defendant or the defendant's children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.

          (2) Aggravating Circumstances

          (a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.

          (b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.

          (c) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:

          (i) The current offense involved multiple victims or multiple incidents per victim;

          (ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;

          (iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

          (iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.

          (d) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition:  The presence of ANY of the following may identify a current offense as a major VUCSA:

          (i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; or

          (ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or

          (iii) The current offense involved the manufacture of controlled substances for use by other parties; or

          (iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy; or

          (v) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; or

          (vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional)((; or)).

          (e) The defendant is being sentenced for an offense involving the use or threatened use of physical violence and poses a future danger that will not be sufficiently mitigated by a period of incarceration within the standard range.  This finding may be made whether the current offense is sexually motivated or nonsexually motivated, but it must be supported by:

          (i) A history of similar misconduct.  This history may be established by prior criminal convictions or other competent evidence; and

          (ii) A finding that the defendant is not amenable to treatment.  The presence of any of the following will support such a finding:

          (A) The opinion of a mental health professional that the defendant would likely not be amenable to treatment;

          (B) The defendant is ineligible for treatment at all available facilities due, for instance, to prior unsuccessful treatment;

          (C) The defendant refuses to cooperate with necessary evaluations to determine the usefulness of treatment; or

          (D) The current offense was committed less than six months after the defendant was released from incarceration for a similar offense.

          (f) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.127((;)).

          (((f))) (g) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time((; or)).

          (((g))) (h) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

 

                                 PART II - WITNESS INTIMIDATION/TAMPERING

 

          NEW SECTION.  Sec. 201.  The legislature finds that witness intimidation and witness tampering serve to thwart both the effective prosecution of criminal conduct in the state of Washington and resolution of child dependencies.

          Further, the legislature finds that intimidating persons who have information pertaining to a future proceeding serves to prevent both the bringing of a charge and prosecution of such future proceeding.  The legislature finds that the period before a crime or child abuse or neglect is reported is when a victim is most vulnerable to influence, both from the defendant or from people acting on behalf of the defendant and a time when the defendant is most able to threaten, bribe, and/or persuade potential witnesses to leave the jurisdiction or withhold information from law enforcement agencies.

          The legislature moreover finds that a criminal defendant's admonishment or demand to a witness to "drop the charges" is intimidating to witnesses or other persons with information relevant to a criminal proceeding.

          The legislature finds, therefore, that tampering with and/or intimidating witnesses or other persons with information relevant to a present or future criminal or child dependency proceeding are grave offenses which adversely impact the state's ability to promote public safety and prosecute criminal behavior.

 

        Sec. 202.  RCW 9A.72.090 and 1982 1st ex.s. c 47 s 16 are each amended to read as follows:

          (1) A person is guilty of bribing a witness if he or she offers, confers, or agrees to confer any benefit upon a witness or a person he or she has reason to believe is about to be called as a witness in any official proceeding or upon a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child, with intent to:

          (a) Influence the testimony of that person; or

          (b) Induce that person to avoid legal process summoning him or her to testify; or

          (c) Induce that person to absent himself or herself from an official proceeding to which he or she has been legally summoned; or

          (d) Induce that person to refrain from reporting information relevant to a criminal investigation or the abuse or neglect of a minor child.

          (2) Bribing a witness is a class B felony.

 

        Sec. 203.  RCW 9A.72.100 and 1982 1st ex.s. c 47 s 17 are each amended to read as follows:

          (1) A witness or a person who has reason to believe he or she is about to be called as a witness in any official proceeding or that he or she may have information relevant to a criminal investigation or the abuse or neglect of a minor child is guilty of bribe receiving by a witness if he or she requests, accepts, or agrees to accept any benefit pursuant to an agreement or understanding that:

          (a) ((His)) The person's testimony will thereby be influenced; or

          (b) ((He)) The person will attempt to avoid legal process summoning him or her to testify; or

          (c) ((He)) The person will attempt to absent himself or herself from an official proceeding to which he or she has been legally summoned; or

          (d) The person will not report information he or she has relevant to a criminal investigation or the abuse or neglect of a minor child.

          (2) Bribe receiving by a witness is a class B felony.

 

        Sec. 204.  RCW 9A.72.110 and 1985 c 327 s 2 are each amended to read as follows:

          (1) A person is guilty of intimidating a witness if a person directs a threat to a former witness because of the witness' testimony in any official proceeding, or if, by use of a threat directed to a current witness or a person he or she has reason to believe is about to be called as a witness in any official proceeding or to a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child, he or she attempts to:

          (a) Influence the testimony of that person; or

          (b) Induce that person to elude legal process summoning him or her to testify; or

          (c) Induce that person to absent himself or herself from such proceedings; or

          (d) Induce that person not to report the information relevant to a criminal investigation or the abuse or neglect of a minor child, not to prosecute the crime or the abuse or neglect of a minor child, not to have the crime or the abuse or neglect of a minor child prosecuted, or not to give truthful or complete information relevant to a criminal investigation or the abuse or neglect of a minor child.

          (2) "Threat" as used in this section means:

          (a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or

          (b) Threats as defined in RCW 9A.04.110(25).

          (3) Intimidating a witness is a class B felony.

 

        Sec. 205.  RCW 9A.72.120 and 1982 1st ex.s. c 47 s 19 are each amended to read as follows:

          (1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to:

          (a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or

          (b) Absent himself or herself from such proceedings; or

          (c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation or the abuse or neglect of a minor child to the agency.

          (2) Tampering with a witness is a class C felony.

 

                                           PART III - CHILD MOLESTATION

 

          NEW SECTION.  Sec. 301.  The legislature hereby reaffirms its desire to protect the children of Washington from sexual abuse and further reaffirms its condemnation of child sexual abuse that takes the form of causing one child to engage in sexual contact with another child for the sexual gratification of the one causing such activities to take place.

 

        Sec. 302.  RCW 9A.44.083 and 1990 c 3 s 902 are each amended to read as follows:

          (1) A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.

          (2) Child molestation in the first degree is a class A felony.

 

        Sec. 303.  RCW 9A.44.086 and 1988 c 145 s 6 are each amended to read as follows:

          (1) A person is guilty of child molestation in the second degree when the person has, or knowingly causes another person to have, sexual contact with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.

          (2) Child molestation in the second degree is a class B felony.

 

        Sec. 304.  RCW 9A.44.089 and 1988 c 145 s 7 are each amended to read as follows:

          (1) A person is guilty of child molestation in the third degree when the person has, or knowingly causes another person to have, sexual contact with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.

          (2) Child molestation in the third degree is a class C felony.

 

        Sec. 305.  RCW 9A.44.093 and 1988 c 145 s 8 are each amended to read as follows:

          (1) A person is guilty of sexual misconduct with a minor in the first degree when the person has, or knowingly causes another person to have, sexual intercourse with another person who is at least sixteen years old but less than eighteen years old and not married to the perpetrator, if the perpetrator is at least sixty months older than the victim, is in a significant relationship to the victim, and abuses a supervisory position within that relationship in order to engage in sexual intercourse with the victim.

          (2) Sexual misconduct with a minor in the first degree is a class C felony.

 

        Sec. 306.  RCW 9A.44.096 and 1988 c 145 s 9 are each amended to read as follows:

          (1) A person is guilty of sexual misconduct with a minor in the second degree when the person has, or knowingly causes another person to have, sexual contact with another person who is at least sixteen years old but less than eighteen years old and not married to the perpetrator, if the perpetrator is at least sixty months older than the victim, is in a significant relationship to the victim, and abuses a supervisory position within that relationship in order to engage in sexual contact with the victim.

          (2) Sexual misconduct with a minor in the second degree is a gross misdemeanor.

 

                                            PART IV - DNA IDENTIFICATION

 

          NEW SECTION.  Sec. 401.  The legislature finds that DNA identification analysis is an accurate and useful law enforcement tool for identifying and prosecuting sexual and violent offenders.  The legislature further finds no compelling reason to exclude juvenile sexual and juvenile violent offenders from DNA identification analysis.

 

        Sec. 402.  RCW 43.43.754 and 1990 c 230 s 3 are each amended to read as follows:

          After July 1, 1990, every adult or juvenile individual convicted ((in a Washington superior court)) of a felony or adjudicated guilty of an equivalent juvenile offense defined as a sex offense under RCW 9.94A.030(29)(a) or a violent offense as defined in RCW 9.94A.030(((32))) shall have a blood sample drawn for purposes of DNA identification analysis.  For persons convicted of such offenses or adjudicated guilty of an equivalent juvenile offense after July 1, 1990, who are serving a term of confinement in a county jail or detention facility, the county shall be responsible for obtaining blood samples prior to release from the county jail or detention facility.  For persons convicted of such offenses or adjudicated guilty of an equivalent juvenile offense after July 1, 1990, who are serving a term of confinement in a department of corrections facility or a division of juvenile rehabilitation facility, the department shall be responsible for obtaining blood samples prior to release from such facility.  Any blood sample taken pursuant to RCW 43.43.752 through 43.43.758 shall be used solely for the purpose of providing DNA or other blood grouping tests for identification analysis and prosecution of a sex offense or a violent offense.

 

                                        PART V - TOXICOLOGIST AS WITNESS

 

        Sec. 501.  RCW 43.43.680 and 1992 c 129 s 1 are each amended to read as follows:

          (1) In all prosecutions involving the analysis of a controlled substance or a sample of a controlled substance by the crime laboratory system of the state patrol, a certified copy of the analytical report signed by the supervisor of the state patrol's crime laboratory or the forensic scientist conducting the analysis is prima facie evidence of the results of the analytical findings.

          (2) The defendant or a prosecutor may subpoena the forensic scientist who conducted the analysis of the substance to testify at the preliminary hearing and trial of the issue at no cost to the defendant, if the subpoena is issued at least ten days prior to the trial date.

          (3) In all prosecutions involving the analysis of a certified simulator solution by the Washington state toxicology laboratory of the University of Washington, a certified copy of the analytical report signed by the state toxicologist or the toxicologist conducting the analysis is prima facie evidence of the results of the analytical findings, and of certification of the simulator solution used in the BAC verifier datamaster or any other alcohol/breath-testing equipment subsequently adopted by rule.

          (4) The defendant of a prosecution may subpoena the toxicologist who conducted the analysis of the simulator solution to testify at the preliminary hearing and trial of the issue at no cost to the defendant, if thirty days prior to issuing the subpoena the defendant gives the state toxicologist notice of the defendant's intention to require the toxicologist's appearance.

 

                                                 PART VI - RESTITUTION

 

        Sec. 601.  RCW 9.94A.140 and 1989 c 252 s 5 are each amended to read as follows:

          (1) If restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within sixty days.  The court shall then set a minimum monthly payment that the offender is required to make towards the restitution that is ordered.  The court should take into consideration the total amount of the restitution owed, the offender's present, past, and future ability to pay, as well as any assets that the offender may have.  During the period of supervision, the community corrections officer may examine the offender to determine if there has been a change in circumstances that warrants an amendment of the monthly payment schedule.  The community corrections officer may recommend a change to the schedule of payment and shall inform the court of the recommended change and the reasons for the change.  The sentencing court may then reset the monthly minimum payments based on the report from the community corrections officer of the change in circumstances.  Restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury.  Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense.  The amount of restitution shall not exceed double the amount of the offender's gain or the victim's loss from the commission of the crime.  For the purposes of this section, the offender shall remain under the court's jurisdiction for a maximum term of ten years ((subsequent to the imposition of sentence)) following the offender's release from total confinement or ten years subsequent to the entry of the judgment and sentence, whichever period is longer.  The portion of the sentence concerning restitution may be modified as to amount, terms and conditions during the ten-year period, regardless of the expiration of the offender's term of community supervision and regardless of the statutory maximum for the crime.  The offender's compliance with the restitution shall be supervised by the department.

          (2) Restitution may be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property.  In addition, restitution may be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.

          (3) In addition to any sentence that may be imposed, a defendant who has been found guilty of an offense involving fraud or other deceptive practice or an organization which has been found guilty of any such offense may be ordered by the sentencing court to give notice of the conviction to the class of persons or to the sector of the public affected by the conviction or financially interested in the subject matter of the offense by mail, by advertising in designated areas or through designated media, or by other appropriate means.

          (4) This section does not limit civil remedies or defenses available to the victim or defendant.

 

                                                PART VII - BAIL JUMPING

 

          NEW SECTION.  Sec. 701.  RCW 10.19.130 and 1975 1st ex.s. c 2 s 1 are each repealed.

 

                                              PART VIII - MISCELLANEOUS

 

          NEW SECTION.  Sec. 801.  Part headings and the table of contents as used in this act do not constitute any part of the law.

 


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