OLR Bill Analysis

sSB 1105 (as amended by House "A")*

AN ACT CONCERNING REVISIONS TO THE CRIMINAL JUSTICE STATUTES.

SUMMARY:

This bill makes a number of changes in criminal laws. Among other things, it:

1. requires a person's probation term to begin after he or she serves any prison sentence;

2. creates a task force to study ways to reduce extradition costs and the feasibility of vacating bond forfeiture orders under certain circumstances;

3. expands the crime of felony murder;

4. makes it a form of 2nd degree assault to intentionally cause physical injury to someone by striking or kicking the other person in the head while the person is in a lying position, thus increasing the penalty for this conduct from a class A misdemeanor to a class D felony;

5. increases the penalty for 2nd degree assault from a class D felony to a class C felony when serious physical injury results;

6. specifies that the 10-year registration period required for certain sex offenders begins when the offender is released into the community;

7. expands the infraction of simple trespass;

8. expands the crimes of tampering with evidence to cover activities while a criminal investigation, in addition to an official proceeding, is pending or anticipated;

9. excludes from participation in accelerated rehabilitation (AR) health care providers or vendors participating in the state's Medicaid program who are charged with (a) 1st degree larceny or (b) 2nd degree larceny involving defrauding a public community of $2,000 or less;

10. excludes from participation in the pretrial alcohol education program people charged with 2nd degree manslaughter with a vessel or 1st degree reckless vessel operation while under the influence and makes other changes to eligibility based on prior convictions and program usage;

11. requires the drug education program portion of the pretrial drug education and community service program be a 15-session, rather than a 15-week, program ( 12);

12. allows people who would otherwise participate in the family violence education program to participate in the supervised diversionary program when the court finds it is appropriate;

13. no longer requires the Psychiatric Security Review Board (PSRB), when conditionally releasing someone under its jurisdiction, to require that the person have outpatient treatment (although treatment is still required);

14. makes assaulting a state or municipal animal control officer or a licensed and registered security officer a class C felony;

15. makes changes affecting sentencing for 1st degree sexual assault and 1st degree aggravated sexual assault, such as expanding when the court can order probation for these crimes and increasing the mandatory minimum for the latter crime in some circumstances;

16. expands the definition of a “peace officer” to include U.S. marshals and deputy marshals;

17. creates a 16-member Domestic Violence Offender Program Standards Advisory Council to promulgate, review, update, and amend the domestic violence offender program standards;

18. changes the scope of the Superior Courts' local family violence intervention units' role in the provision of victim and offender treatment services;

19. extends to family violence victims the right to keep certain information confidential, as existing law allows for sexual assault victims and victims of injury or risk of injury to, or impairing the morals of, children;

20. increases the penalty for drivers who fail to stop after being involved in accidents causing serious physical injury or death; and

21. prevents land subject to a conservation restriction held by a nonprofit land-holding organization from being acquired by adverse possession.

The bill makes three additional changes, not related to criminal laws. It:

1. narrows the applicability of a law allowing for certain master associations under the Common Interest Ownership Act (CIOA) to terminate and transfer their assets to a new nonstock corporation,

2. expands when CIOA executive boards can act without a meeting, and

3. establishes procedures for someone who receives a subpoena related to a civil or probate action in another state or a foreign country and who is not a party to that proceeding to object to the subpoena as an undue or unreasonable burden or expense and the court to rule on a request to enforce the subpoena.

Finally, it also makes technical changes.

*House Amendment “A” eliminates provisions expanding the crimes of tampering with or intimidating a witness and vacating bond forfeiture orders under certain circumstances and adds the provisions on (1) the extradition task force, (2) intentionally causing physical injury to someone by striking or kicking someone in the head, (3) diversionary programs, (4) PSRB conditional release, (5) assaulting animal control officers and security guards, (6) sexual assault sentencing (7) U.S. marshals, (8) the domestic violence council, (9) family violence intervention units, (10) family violence victim confidentiality, (11) common interest communities, (12) drivers failing to stop at accident scenes, (13) subpoenas from out-of-state actions, and (14) adverse possession

EFFECTIVE DATE: October 1, 2015 except the provisions on (1) the extradition cost task force, PRSB, U.S. marshals, domestic violence council, and termination of master associations are effective upon passage; (2) family violence victim confidentiality are effective July 1, 2015; and (3) family violence intervention units are effective January 1, 2016.

1 — SERVING PROBATION TERMS

When a person is sentenced to a period of probation or conditional discharge to be served after a prison sentence, the law requires the probation or conditional discharge period to begin when the person is released from prison. Under case law, the court can delay the start of a probation or conditional discharge term only when a person is in prison under a sentence for the same crime; it cannot delay the probation or conditional discharge period if the person is in prison due to a sentence on a different conviction (State v. Moore, 85 Conn.App. 7 (2004)).

The bill requires any probation or conditional discharge term to begin when the defendant is released from prison, regardless of when the prison sentence is imposed.

2 — TASK FORCE ON EXTRADITION AND BONDS

The bill creates a task force to examine:

1. ways to reduce costs to extradite someone to the state for criminal proceedings and

2. the feasibility of a court vacating bond forfeiture orders when a professional bondsman, surety bail bond agent, or insurer pays the extradition costs.

It must report its recommendations to the Judiciary Committee by January 15, 2016, and it terminates on the later of that date or when it submits its report.

Members and Staff

The task force consists of the following nine members:

1. a Connecticut surety bail bond agent or professional bondsman appointed by the House speaker;

2. a representative of an insurer who does bail bond business, appointed by the Senate president pro tempore;

3. one member each appointed by the Senate majority and minority leaders and the House majority and minority leaders, who may be legislators;

4. the emergency services and public protection commissioner, or her designee;

5. a representative of the U.S. Marshals Service, appointed by the U.S. Marshal for the Connecticut district; and

6. the chief state's attorney.

The bill requires appointing authorities to (1) make their appointments within 30 days of the bill's passage and (2) fill any vacancies.

The bill makes the chief state's attorney the task force chairman and requires him to schedule the first meeting within 60 days of the bill's passage. The Judiciary Committee's administrative staff must serve as the task force's administrative staff.

3 — FELONY MURDER

The bill expands the crime of felony murder to include when a person commits or attempts to commit home invasion and, during or in furtherance of the crime, or while fleeing the crime, the person or any other participant in the crime causes the death of someone not participating in the crime.

By law, felony murder includes causing a death as described above related to the crime of robbery, burglary, kidnapping, 1st or 3rd degree sexual assault, 1st degree aggravated sexual assault, 3rd degree sexual assault with a firearm, or 1st and 2nd degree escape.

By law, felony murder is punishable by 25 to 60 years in prison, a fine of up to $20,000, or both.

4 — 2ND DEGREE ASSAULT

Conduct

The bill increases the penalty for intentionally causing physical injury to someone, from a class A misdemeanor to a class D felony, when a person causes the injury by striking or kicking another person in the head while the person is in a lying position. It does so by making this conduct a 2nd degree assault. Currently, someone who intentionally causes physical injury in any manner commits the class A misdemeanor of 3rd degree assault (CGS 53a-61). By law, a class A misdemeanor is punishable by up to one year in prison, a fine of up to $2,000, or both. Class D felonies are punishable by up to five years in prison, a fine of up to $5,000, or both.

By law, a person commits 2nd degree assault when he or she does any of the following to someone:

1. intentionally causes serious physical injury;

2. intentionally causes physical injury by using a deadly weapon or dangerous instrument other than a firearm;

3. recklessly causes serious physical injury by using a deadly weapon or dangerous instrument;

4. for a purpose other than lawful medical or therapeutic treatment, intentionally causes stupor, unconsciousness, or other physical impairment or injury by administering, without the victim's consent, a drug, substance, or preparation capable of producing the same;

5. while on parole, intentionally causes physical injury to a Board of Pardons and Paroles employee or member; or

6. without provocation, strikes a person in the head intentionally causing serious physical injury and rendering him or her unconscious.

Penalty

The bill increases the penalty, from a class D felony to a class C felony, when a 2nd degree assault results in serious physical injury. By law, class C felonies are punishable by up to 10 years in prison, a fine of up to $10,000, or both. By law, a “serious physical injury” is one that creates a substantial risk of death or causes serious disfigurement, impairment of health, or loss or impairment of an organ's function (CGS 53a-3(4)).

5-7 — SEX OFFENDER REGISTRATION PERIOD

The bill specifies that the 10-year registration period required for certain sex offenders begins when the offender is released into the community. By law, offenders convicted of 4th degree sexual assault, voyeurism, or crimes designated as sexual offenses against a minor must register for 10 years. The court may require an offender convicted of a felony committed for a sexual purpose to register for 10 years.

By law, a person convicted of a violent crime or a subsequent conviction of 4th degree sexual assault, voyeurism, or a sexual offense against a minor must register for life.

8 — TRESPASS

By law, a person commits simple trespass by entering any premises knowing he or she is not licensed or privileged to enter, without intent to harm the property. The bill expands this infraction to include when a person remains in or on the premises.

9 — TAMPERING WITH OR FABRICATING EVIDENCE

The bill expands the scope of this crime to cover conduct that occurs when a person believes a law enforcement criminal investigation is pending or about to begin. Under current law, a person tampers with or fabricates evidence when he or she:

1. believes an official proceeding is pending or about to begin and

2. (a) alters, destroys, conceals, or removes a record, document, or thing in order to impair its verity or availability in a proceeding or (b) makes, presents, or uses a record, document, or thing knowing it is false in order to mislead a public servant who is or may be engaged in the official proceeding.

The bill expands this crime to cover these actions when a criminal investigation is pending or about to begin. In ruling on a related statute, the Connecticut Supreme Court ruled that the evidence tampering crime did not cover situations where a person believes that only an investigation but not an official proceeding is likely (State v. Jordan, 314 Conn. 354 (2014)).

By law, this crime is a class D felony.

10 — ACCELERATED REHABILITATION (AR) AND 1ST AND 2ND DEGREE LARCENY

The law excludes people charged with class B felonies from participating in AR, with some exceptions. Currently, someone charged with the class B felony of 1st degree larceny can participate in AR only if he or she:

1. (a) committed larceny by depriving someone of property or services valued at over $20,000 or of any value if obtained through by extortion and (b) did not use, attempt to use, or threaten to use force or

2. (a) committed larceny by depriving a public community of property valued at over $2,000 by fraud; (b) did not use, attempt to use, or threaten to use force; and (c) is not a public official or state or municipal employee.

The bill additionally excludes someone charged with 1st degree larceny if he or she is a health care provider or vendor participating in the state's Medicaid program.

The law allows someone charged with a class C felony to participate in AR for good cause. The bill excludes from AR participation someone charged with the class C felony of 2nd degree larceny when it involves defrauding a public community of $2,000 or less and the person is a health care provider or vendor participating in the state's Medicaid program.

By changing eligibility for AR, the bill also affects eligibility for the supervised diversionary program for people with psychiatric disabilities and certain veterans (see 13).

11 — PRETRIAL ALCOHOL EDUCATION PROGRAM

If a defendant meets the eligibility criteria for this program, the court has discretion to allow his or her participation and he or she is placed in an alcohol intervention or a state-licensed substance abuse treatment program after an evaluation. If the defendant satisfactorily completes the program, the court dismisses the charges.

Eligibility

The bill excludes from eligibility for this program people charged with:

1. 2nd degree manslaughter with a vessel (operating a vessel while under the influence of alcohol or drugs and causing another's death) or

2. 1st degree reckless vessel operation while under the influence (operating a vessel while under the influence of alcohol or drugs or with an elevated blood alcohol content and causing serious physical injury or more than $2,000 property damage).

By law, unchanged by the bill, a defendant is generally eligible for this program if he or she is charged with driving under the influence (DUI), violating rules for safe boating (including drunken boating), or 2nd degree reckless vessel operation while under the influence.

Currently, someone is ineligible for participating in this program if he or she is (1) charged with driving under the influence and used the program in the previous 10 years for a DUI violation or (2) charged with DUI while under age 21 and has used the program for either type of DUI crime. The bill instead makes someone ineligible if he or she (1) is charged with DUI, DUI while under age 21, drunken boating, or 2nd degree reckless vessel operation while under the influence and (2) has used the program for any one of these charges within the previous 10 years.

Currently, someone is also ineligible if he or she has a prior conviction of DUI, 2nd degree manslaughter with a motor vehicle (which involves DUI), 2nd degree assault with a motor vehicle (which involves DUI), or a similar crime in another state. The bill also makes ineligible someone previously convicted of DUI while under age 21, 2nd degree manslaughter with a vessel (which involves operating under the influence), drunken boating, 1st degree reckless operation of a vessel under the influence, or 2nd degree reckless vessel operation while under the influence, or a similar crime in another state.

The law also makes ineligible, except for good cause, someone charged with DUI or DUI while under age 21 if the conduct caused serious physical injury to another. The bill also makes ineligible, except for good cause, someone charged with drunken boating if it caused serious physical injury to another.

By law, a person is also ineligible if he or she is charged with DUI and was operating a commercial vehicle or holds a commercial driver's license or instruction permit.

Reporting Program Usage

Current law requires the Judicial Branch's Court Support Services Division (CSSD) to report to the Department of Energy and Environmental Protection when someone charged with one of the boating crimes successfully completes the program. The bill restricts when CSSD must report on people charged with violating rules for safe boating to instances when the safe boating violation involved drunken boating.

13 — PRETRIAL SUPERVISED DIVERSIONARY PROGRAM

By law, this criminal diversion program is for people with psychiatric disabilities or certain veterans with mental conditions amenable to treatment.

Currently, someone is ineligible for this program if he or she has used this program twice before or is charged with a crime that makes him or her ineligible for AR. Currently, someone is ineligible for AR, and thus this program, if he or she could participate in the pretrial family violence education program. The bill allows such a person to participate in the supervised diversionary program if it is the more appropriate program for the person under the circumstances.

14 — CONDITIONAL RELEASE BY THE PSRB

By law, unless discharged, the court commits someone who is found not guilty of a crime because of mental disease or defect to the PSRB for a term up to the maximum sentence authorized for the crime. The board has authority, based on findings about the person's mental condition, to conditionally release him or her under the board's jurisdiction.

Currently, the board can conditionally release someone for supervision and treatment on an outpatient basis. The bill specifies that release is from a hospital for psychiatric disabilities and no longer requires the treatment to be on an outpatient basis.

The bill refers to someone with a “psychiatric disability” rather than a “mental illness” and specifies that a psychiatric disability does not include an abnormality manifested only be repeated criminal or other antisocial conduct.

The bill also makes technical changes.

15 — ASSAULT OF A STATE OR MUNICIPAL ANIMAL CONTROL OFFICER, SECURITY OFFICER, OR RAIL PERSONNEL

Animal Control and Security Officers

The bill makes assault of a state or municipal animal control officer or a licensed and registered security officer a class C felony, the same penalty as for assault of public safety, emergency medical, and public transit personnel and liquor control agents, among others. A person commits this crime by assaulting a reasonably identifiable state or municipal animal control or a security officer performing his or her duties, with intent to prevent them from performing their duties, by doing any of the following to the officer:

1. causing injury;

2. throwing objects capable of causing harm;

3. using tear gas, mace, or a similar harmful agent;

4. throwing paint, dye, or any other offensive substance; or

5. throwing bodily fluid, such as feces, blood, or saliva.

Current law does not have a specific crime for assaulting these animal control or security officers. Generally, assaults are punishable, depending on the conduct, by penalties ranging from a class A misdemeanor to a class A felony.

Rail Personnel

By law, assaulting a public transit employee under the circumstances described above is also a class C felony as described above. Currently, public transit employees include those operating a vehicle providing rail service or performing duties directly related to operating it. The bill instead includes train operators, conductors, inspectors, signal people, and station agents involved in public rail service as public transit employees.

16 & 17 — SEXUAL ASSAULT

The bill makes changes affecting sentencing for 1st degree sexual assault and 1st degree aggravated sexual assault.

It expands when courts can order probation for these crimes by allowing them to do so even when the crimes are class A felonies. This allows courts to impose what is often referred to as a “split sentence” (i.e., a term of imprisonment, part of which is suspended, followed by probation). The bill does not reduce any mandatory minimums.

By law, there is a mandatory minimum prison term of two, five, or 10 years for 1st degree sexual assault, depending on the particular violation. Currently, the sentence must also include a term of imprisonment and special parole that totals at least 10 years. As an alternative, the bill allows a 10-year or longer term of imprisonment, any non-mandatory portion of which may be suspended.

For aggravated sexual assault, the bill (1) raises the mandatory minimum in certain circumstances involving victims who are minors and (2) eliminates the current requirement of five years or more of special parole.

By law, the mandatory minimums for these crimes may be higher if the person falls under the persistent offender statutes (CGS 53a-40).

Below we describe these changes in more detail.

Probation for 1st Degree and 1st Degree Aggravated Sexual Assault

First degree sexual assault and 1st degree aggravated sexual assault are generally class B felonies; they are class A felonies in some circumstances involving victims who are minors.

Current law prohibits courts from ordering probation for class A felonies. The bill creates an exception by allowing probation for 1st degree or 1st degree aggravated sexual assault even when they are class A felonies.

Under existing law, probation for these crimes when class B felonies must generally be for at least 10 years and no more than 35 years. This applies as well under the bill when these crimes are class A felonies (CGS 53a-29(f)).

First-Degree Aggravated Sexual Assault

By law, a person is guilty of this crime when the person commits 1st degree sexual assault and one of four aggravating factors are involved (e.g., the use or threat of a deadly weapon or intentionally causing certain serious injuries).

The bill generally raises the mandatory minimum prison term, from five to 10 years, when this crime is a class A felony (i.e., when the victim is under age 16). Unchanged by the bill, the mandatory minimum is 20 years if the crime involves forcible rape of a victim under age 16.

In all cases of 1st degree aggravated sexual assault, current law requires at least five years of special parole in addition to the mandatory minimum prison term. The bill instead allows the court to (1) suspend any non-mandatory portion of the sentence and impose probation or (2) impose imprisonment and at least one year of special parole.

18 — U.S. MARSHALS AS PEACE OFFICERS

The bill expands the definition of a “peace officer” to include U.S. marshals and deputy marshals. Among other things, this gives them certain arrest powers under state law; access to certain information; and legal protections when using force to apprehend someone, prevent an escape, or protect themselves or others (see BACKGROUND).

19 & 20 — DOMESTIC VIOLENCE OFFENDER PROGRAM STANDARDS

The bill creates a Domestic Violence Offender Program Standards Advisory Council to promulgate, review and, as needed, update and amend the domestic violence offender program standards presented to the Criminal Justice Policy Advisory Committee (CJPAC) on September 25, 2014.

Council Members, Appointment, and Reporting

The 16-member council includes:

1. one representative of the Connecticut Coalition Against Domestic Violence, Inc., appointed by the House speaker;

2. one representative of a community-based organization that provides group counseling or treatment to people who committed acts of domestic violence, appointed by the Senate president pro tempore;

3. a community-based practicing psychologist or a licensed clinical social worker who provides individual counseling or treatment services to people who committed acts of domestic violence, appointed by the House majority leader;

4. one representative of the Connecticut Police Chiefs Association, appointed by the Senate majority leader;

5. one representative of a community-based organization that provides services to adults with mental health or substance use disorders, appointed by the House minority leader;

6. one representative of a community-based organization the provides direct services to people impacted by domestic violence, appointed by the Senate minority leader;

7. one representative each of the Judicial Branch's Court Support Services Division (CSSD) and the Office of Victim Services, both appointed by the chief court administrator;

8. the Board of Pardons and Paroles' chairperson or his designee;

9. the chief state's attorney or his designee;

10. the chief public defender or her designee;

11. the children and families, correction, mental health and addiction services, and public health commissioners, or their designees; and

12. the victim advocate or her designee.

All appointments must be made within 30 days after the bill passes and any vacancies must be filled by the appointing authority. The representatives of the Connecticut Coalition Against Domestic Violence, Inc. and CSSD must chair the council. The chairpersons must schedule and hold the council's first meeting within 60 days after the bill passes. Subsequent meetings must be held when called by the chairpersons or a majority of council members. The Judiciary Committee's administrative staff must serve as the council's administrative staff.

The council, starting by February 1, 2016, must annually report its activities to the Judiciary Committee, including any updates or amendments to the domestic violence offender program standards adopted in the previous calendar year.

Accessibility of Program Standards

The bill requires CJPAC, by 30 days after the bill passes, to submit to the chief court administrator the program standards presented to CJPAC on September 25, 2014. He must ensure that such program standards and any updates or revisions adopted by the council are accessible electronically on the Judicial Branch's website.

21 & 22 — FAMILY VIOLENCE INTERVENTION UNITS

By law, under CSSD's oversight, the local family violence intervention units within the Superior Courts accept referrals of family violence cases from judges or prosecutors. The bill changes the scope of the intervention unit's role in the provision of victim and offender services.

Victim Service Needs

Under current law, the intervention units must (1) identify victim service needs and (2) contract with victim service providers to provide appropriate care to victims, including trauma-informed care. The bill instead allows the Judicial Branch to contract with such providers.

Offender Treatment Programs

Under current law, the intervention units must identify appropriate offender services and, where possible, by contract, provide treatment programs for offenders. The bill instead (1) requires the intervention units to assess offenders to identify appropriate services and (2) allows the Judicial Branch to contract with providers of domestic violence offender treatment programs which must comply with the domestic violence offender program standards. The bill specifies that this provision does not apply to the pretrial family violence education program (see BACKGROUND).

The bill requires the intervention units to monitor compliance of offenders participating in the pretrial family violence education program requirements.

Prosecutor's Nolle Prosequi

By law, a nolle prosequi is an official action by the prosecutor declining to prosecute a charge. Under the bill, if a family violence case initiated on or after July 1, 2016 is not referred to the local family violence intervention unit, the prosecutor may not nolle an action involving a family violence crime (see BACKGROUND) unless he or she states in court:

1. the reasons for doing so and

2. if such reasons include consideration of the defendant's participation in a counseling or treatment program, that such program complies with the domestic violence offender program standards.

23 & 24 — FAMILY VIOLENCE VICTIM CONFIDENTIALITY

The bill extends to family violence victims two protections existing law gives to certain sexual assault victims.

First, it gives family violence victims the right to withhold their addresses or telephone numbers during any trial or pretrial evidentiary hearing arising from such crime if the presiding judge finds the:

1. information is not material to the proceeding,

2. identity of the victim has been satisfactorily established, and

3. current address of the victim will be made available to the defense in the same manner and time as such information is made available to the defense for other criminal offenses.

Second, the bill requires the names, addresses, and other identifying information of family violence victims be kept confidential, but requires that this information be (1) available to the accused in the same manner and time as such information is available to people accused of other crimes and (2) entered in the protective orders registry, if such an order is issued.

25 – TERMINATION OF MASTER ASSOCIATIONS

Legislation enacted in 2014 created a process to terminate certain master associations under the Common Interest Ownership Act (CIOA) and transfer their assets to new nonstock corporations, upon the consent of owners with at least 25% of the units (see BACKGROUND). A master association is an association comprised of other common interest community associations.

Currently, this provision applies to master associations with at least 400 units. The bill narrows its applicability, allowing this process for master associations with at least 400, but no more than 600, units.

26 & 27 — CIOA EXECUTIVE BOARD ACTIONS

Under current law, executive boards under CIOA may act by unanimous consent of board members, instead of meeting. The bill lowers this threshold to two-thirds consent and makes conforming changes to recordkeeping and notice requirements regarding these actions.

As under current law, the bill continues to require executive boards to meet at least twice a year.

28 — FAILING TO STOP AFTER ACCIDENT INVOLVEMENT

The bill increases the penalty for drivers who fail to stop after being involved in certain accidents.

By law, drivers knowingly involved in accidents causing serious physical injury or death must stop, render assistance, and give their identifying information to an officer or witness. The bill increases the penalty for failing to do so by increasing the:

1. prison penalty of between one and 10 years to between two and 20 years and

2. maximum fine from $10,000 to $20,000.

29 — SUBPOENAS FROM OUT-OF-STATE ACTIONS

Existing law allows taking the deposition of someone living in Connecticut for a civil or probate proceeding in a federal court or another state's or country's court. The Superior Court can quash, modify, or enforce a subpoena for the deposition.

This bill allows someone who receives a subpoena related to a civil or probate action in another state or a foreign country and is not a party to that proceeding to serve a written objection on the party who requested the subpoena that the subpoena causes him or her an undue or unreasonable burden or expense. It applies to a subpoena that either requires the person to appear at a deposition or produce, provide copies of, or allow inspection of books, papers, documents, and other things. The subject of the subpoena must serve the subpoena issuer with the objection and an affidavit of costs with the estimated or actual costs of complying with the subpoena, which can include attorneys' fees and electronic discovery costs.

The bill requires the subject of the subpoena to serve the objection and affidavit on the subpoena issuer within the earlier of 15 days after being served with the subpoena or the date specified for complying with the subpoena. The bill requires service by certified or registered U.S. mail, postage paid and return receipt requested and prohibits using a state marshal or other officer.

Under the bill:

1. the party who requested the subpoena must obtain an order from the Superior Court to compel compliance and can, after notice, file a motion in Superior Court to order compliance;

2. on such a motion, the Superior Court must determine whether the subpoena imposes an undue or unreasonable burden or expense; and

3. if the court finds such an undue or unreasonable expense or burden, any order must protect the person from it and, except for a subpoena related to medical records, the order can include at least reimbursement or reasonable compliance costs according to the affidavit of costs.

The bill's provisions do not apply to personal injury or wrongful death actions alleging health care provider or institution professional malpractice.

30 — ADVERSE POSSESSION

The bill prevents land subject to a conservation restriction held by a nonprofit land-holding organization from being acquired by adverse possession. The law already prevents land owned by a nonprofit land-holding organization from being acquired by adverse possession.

Connecticut law recognizes adverse possession as a way to acquire title to property. Adverse possession is accomplished by an open, visible, exclusive, and uninterrupted possession of land for 15 years (CGS 52-575). The law also recognizes the right to acquire a right-of-way or other easement by continuous, uninterrupted use of someone else's land for 15 years (CGS 47-37).

BACKGROUND

Accelerated Rehabilitation (AR)

Certain criminal defendants may avoid prosecution and incarceration by successfully completing court-sanctioned, community-based treatment programs (called diversionary programs) before trial. By law, someone is eligible for the AR program if he or she is charged with certain nonserious crimes or motor vehicle violations, has no prior convictions of a crime or certain motor vehicle violations, and has not used AR before.  Veterans can use the program twice and those charged with a misdemeanor or motor vehicle violation punishable by no more than one year in prison can use the program again if it is at least 10 years from the person's last AR participation. A defendant who does not complete the program is brought to trial (CGS 54-56e).

U.S. Marshals

These officers are considered the enforcement arm of the federal courts and are involved in a number of federal law enforcement initiatives. Their duties include protecting the federal judiciary, apprehending federal fugitives, managing and selling seized assets, housing and transporting federal prisoners, and operating the witness protection program.

Peace Officers

The law designates the following as peace officers: state and local police officers, Division of Criminal Justice inspectors, state marshals exercising statutory powers, judicial marshals performing their duties, conservation or special conservation officers, constables who perform criminal law enforcement duties, appointed special policemen, adult probation officers, DOC officials authorized to make arrests in a correctional institution, investigators in the State Treasurer's Office, federal narcotics agents, and members of a law enforcement unit created and governed under a state-tribal memorandum.

For purposes of their duties, peace officers have access to records not generally available to the public, such as certain criminal justice records (CGS 29-16). They also have various powers regarding use of force and arrests.

Use of Physical Force. Peace officers are justified in using physical force, when and to the extent they reasonably believe it necessary, to (1) make an arrest or prevent a custodial escape, unless they know that the arrest or custody is unauthorized or (2) defend themselves or someone else from the use or imminent use of physical force while making or attempting to make an arrest or while preventing or attempting to prevent an escape (CGS 53a-22(b)).

Use of Deadly Physical Force. Peace officers are justified in using deadly physical force when they reasonably believe it is necessary to (1) defend themselves or another person from the use or imminent use of deadly physical force and (2) arrest or prevent the escape from custody of someone they reasonably believe committed or attempted to commit a felony involving the infliction or threatened infliction of serious physical injury, and if, where feasible, they warned of the intent to use deadly physical force (CGS 53a-22(c)).

Duty to Retreat. The law exempts peace officers from the general duty to retreat rather than use reasonable deadly physical force (CGS 53a-19(b)).

Resisting Arrest. The law prohibits the use of physical force to resist an arrest by a reasonably identifiable peace officer, whether the arrest is legal or illegal (CGS 53a-23).

Arrest Powers. Peace officers, when in their town, can arrest, without a warrant, a person (1) apprehended while committing an offense or (2) on the speedy information of others. Outside of their town, they can arrest someone (1) for a felony, without a warrant, at any time or (2) when in immediate pursuit from their town if they could legally arrest the person under their authority (CGS 54-1f).

Pretrial Family Violence Education Program

By law, the pretrial family violence education program informs people charged with family violence crimes of the basic elements of family violence law and applicable penalties. The court may, in its discretion, invoke such program at the request of the defendant under specified conditions, including that the defendant is not charged with certain felonies and has not previously (1) been convicted of certain family violence crimes, (2) been assigned to the family violence education program, and (3) invoked or accepted accelerated rehabilitation for certain family violence crimes (CGS 46b-38c(h)).

Family Violence

By law, “family violence” is an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical harm, bodily injury or assault, including stalking or a pattern of threatening, between family or household members. Verbal abuse or argument does not constitute family violence unless there is present danger and the likelihood that physical violence will occur (CGS 46b-38a(1)).

Master Association Termination

Under PA 14-215, in addition to the limitation on the number of units noted above, the termination process applies to master associations:

1. governed by a board of directors with one individual representing each constituent common interest community, who is on the constituent community's board and

2. whose board has a weighted vote based on the number of units in each constituent community.

Under the act, the association is terminated and dissolved if at least 25% of unit owners consent in writing. After dissolution, the association must convey its assets to a new nonstock corporation that must be formed within 60 days. The association of each constituent community must appoint a member to the nonstock corporation's board, and each board member must have an equal vote in board matters.

Common Interest Ownership Act

CIOA governs the creation, alteration, management, termination, and sale of condominiums and other common interest communities formed in Connecticut on and after January 1, 1984 (CGS 47-200 et seq.). Certain CIOA provisions (including the liability statute amended by this bill) also apply to common interest communities created in Connecticut before January 1, 1984 but do not invalidate existing provisions of the communities' governing instruments. Common interest communities created before that date can amend their governing instruments to conform to portions of CIOA that do not automatically apply (CGS 47-214, 216, & 218).

COMMITTEE ACTION

Judiciary Committee

Joint Favorable

Yea

43

Nay

0

(04/06/2015)