ARIZONA HOUSE OF REPRESENTATIVES

Fifty-sixth Legislature

Second Regular Session

                                                                                                                 House: JUD DPA 4-3-1-0

HB 2044: restitution; child survivors; DUI.

Sponsor: Representative Bliss, LD 1

Caucus & COW

Overview

Requires a court to order that a defendant pay restitution for the support of a minor child whose parent or guardian was the victim of a specified homicide offense that involved the defendant operating a motor vehicle while intoxicated and causing the death of another by accident or mistake.

History

The criminal code recognizes multiple forms of homicide offenses, two of which are negligent homicide and manslaughter.

A person commits negligent homicide under A.R.S. § 13-1102 by, with criminal negligence, causing the death of another person, including an unborn child.

A person commits manslaughter under A.R.S. § 13-1103, subsection A by doing any of the following:

1)   Recklessly causing the death of another person;

2)   Committing second degree murder as prescribed in A.R.S. § 13-1104, subsection A on a sudden quarrel or heat of passion resulting from adequate provocation by the victim;

3)   Intentionally providing the physical means that another person uses to die by suicide, with the knowledge that the person intends to die by suicide;

4)   Committing second degree murder as prescribed in A.R.S. § 13-1104, subsection A, paragraph 3, while being coerced to do so by the use or threatened immediate use of unlawful deadly physical force on the person or a third person that a reasonable person in his situation would have been unable to resist; or

5)   Knowingly or recklessly causing the death of an unborn child by any physical injury to the mother.

The criminal code defines the four culpable mental states as follows:

1)   Intentionally (or with the intent to) means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct;

2)   Knowingly means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission;

3)   Recklessly means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.  A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk; and

4)   Criminal negligence means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation (A.R.S. § 13-105).

In light of these definitions, Arizona courts have recognized that "[n]egligent homicide is distinguished from reckless manslaughter in that for the latter offense, the defendant is aware of the risk of death and consciously disregards it, whereas, for the former offense, [the defendant] is unaware of the risk." State v. Walton, 133 Ariz. 282, 291 (App. 1982).

Current statute also provides that an order of restitution in favor of a person does not preclude that same person from bringing a separate civil action and establishing damages in excess of the amount of the restitution order that is actually paid (A.R.S. § 13-807).

Provisions

1.   ☐ Prop 105 (45 votes) ☐ Prop 108 (40 votes) ☐ Emergency (40 votes) ☐ Fiscal NoteRequires a court to order a defendant to pay restitution for the support of a minor child whose parent or guardian was the victim of an offense if the following conditions are met:

a)   The defendant is convicted of negligent homicide under A.R.S. § 13-1102 or manslaughter under A.R.S. § 13-1103, subsection A; and

b)   The offense involved the defendant operating a motor vehicle while intoxicated, and because of that intoxication, the defendant caused the death of another by accident or mistake. (Sec. 1)

2.   Mandates that the court order the above restitution payments to be paid monthly until the minor child reaches 18 years old or graduates from high school, whichever is later. (Sec. 1)

3.   Requires the court to determine the manner in which the restitution is to be paid and instructs the court to consider all relevant factors in determining the amount of restitution that is reasonable and necessary, including:

a)   The financial needs and resources of the minor child;

b)   The financial needs and resources of the surviving parent or guardian, if any, or of another current guardian of the minor child or, if applicable, the financial resources of the state of Arizona if the Department of Child Safety (DCS) is appointed as the temporary or permanent managing conservator of the minor child;

c) The standard of living to which the minor child is accustomed;

d)   The physical and emotional condition of the minor child and the minor child's educational needs;

e)   The minor child's physical and legal custody arrangements;

f) The reasonable work-related child care expenses of the surviving parent or guardian or other current guardian, if applicable; and

g)   The financial resources of the defendant. (Sec. 1)

4.   If a defendant who is ordered to make restitution payments pursuant to these provisions is unable to do so because the defendant is confined in a correctional facility, requires the defendant to begin payments no later than the first anniversary of the date of the defendant's release from confinement. (Sec. 1)

5.   Authorizes a defendant to enter into a payment plan to address any arrearage that exists on the date of the defendant's release from confinement, and requires the defendant to pay all arrearages regardless of whether the restitution payments were scheduled to terminate while the defendant was confined in the correctional facility. (Sec. 1)

Amendments

Committee on Judiciary

1.   Removes language requiring the court to consider the financial resources of the state of Arizona if the DCS is appointed as the temporary or permanent managing conservator of the minor child in determining the amount of restitution that is reasonable and necessary.

2.   If DCS is the legal guardian of the child, requires the court to appoint a trustee to ensure that the restitution is paid directly to the child and prohibits DCS from using the restitution under this section to pay or reimburse DCS or the state of Arizona for any of the costs of the child's care.  

 

 

 

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                        HB 2044

Initials JL      Page 0 Caucus & COW

 

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