2009 Missouri Police Chiefs Association

1. 2009 Missouri Police Chiefs Association Legislative & Legal Update August 2009 James Klahr, Legislative Liaison Missouri Department of Public Safety

2. Today’s Schedule • 4 hours Continuing Education – Legal • 3+ hours – 2009 Legislation • Remaining Time – Case Law Update & Question and Answer

3. Housekeeping Matters • How to find copies of legislation – • House Bills – www.house.mo.gov • Senate Bills – www.senate.mo.gov • Can search by bill number, sponsor or key word • Most bills take effect August 28, 2009 unless otherwise specified

4. Expansion of DNA Database • HB 152 – Rep. Marilyn Ruestman • Expands the DNA Database to include: • Those arrested for 1st Degree Burglary • Those arrested for 2nd Degree Burglary • Those arrested for any felony offense under Ch. 565 (Crimes Against the Person), Ch. 566 (Sex Offenses), Ch. 567 (Prostitution), Ch. 568 (Crimes Against the Family) or Ch. 573 (Pornography)

5. DNA Database • Under current law, only those convicted of a felony or any offense under Chapter 566 is required to submit a DNA sample • 20 other states have enacted legislation requiring sampling upon arrest • This will allow certain crimes to be solved faster • Potential to prevent repeat offenders from committing multiple future offenses • Will exonerate an innocent person whose DNA does not match evidence from the crime scene

6. DNA Collection • With addition of arrestees, local law enforcement will be collecting the DNA samples at the time of arrest • Will need to check MULES (QDNA)/LENS to determine if the arrestee is already in the DNA database • If your agency needs to collect DNA for an investigation, will need to collect a separate sample – either through consent, search warrant, etc. Do not use the MSHP offender DNA collection kits for these samples.

7. DNA Collection & Expungement • If no charges have been filed, the arresting agency shall, within 90 days, notify the Highway Patrol Crime Lab which shall: • Expunge all DNA records taken at the arrest unless • Highway Patrol determines that the person is otherwise obligated to submit a DNA sample

8. DNA Expungements & Exceptions • Situations where the DNA sample would not be expunged even if arrestee is not charged: • Arrestee has a previous conviction that requires DNA sample to be retained in the database (reminder to check MULES at time of arrest) • Arrestee, after the initial arrest, is arrested for another offense that requires arrestee to provide DNA sample

9. DNA Expungements – Other Situations • Even if the arrestee is charged, that defendant’s DNA record shall be ordered expunged if: • Charges are later withdrawn • Case is dismissed or court finds no probable cause • Defendant is found not guilty In the first scenario, prosecutor notifies the Highway Patrol Crime Lab.

10. DNA Expungements – Other Situations If case is dismissed or defendant is acquitted, the court shall notify the Highway Patrol Crime Lab. • Crime Lab has 30 days from notification to determine whether the person is otherwise obligated to submit a sample. If the person is not, the Patrol shall expunge the sample.

11. Other DNA Changes • HB 62 (Omnibus Crime Bill) also expands the DNA database: • Requires that any individual required to register as a sex offender under Sections 589.400 to 589.425 will have to submit a fingerprint and DNA sample • Case Law Update (preview) – John Doe I, et. al. v. Keathley et. al., SC89727 – requires any sex offender to register if required to register under federal law.

12. Other DNA Changes • As a result of the Doe case, a number of offenders that previously were exempted from registration will have to register. When they do, the registering agency (i.e. sheriff’s office) will take a DNA sample to submit to the Highway Patrol Crime Lab.

13. Other DNA Changes • HB 481 – Omnibus Courts Bill: • Clarifies that a person who is found to be a sexually violent predator by clear and convincing evidence shall have his DNA taken for the database. • Old law had required that State had to prove that someone was a sexually violent predator “beyond a reasonable doubt.”

14. HB 62 – Omnibus Crime Bill • Contains various provisions relating to crime: • Updates to Central Repository procedures • Clarifies the law on detainers • Creates certain protections to those who injure or kill a vicious dog in self-defense • Changes to Driving & Alcohol Related laws • Updates laws on assaults of certain officers • New investigative language for Attorney General on sex crimes • Updates to stealing-related crimes

15. HB 62 – Omnibus Crime • Changes to sex offender registry and various sex-related crimes • Creates a Crime Lab Commission • Establishes guidelines for recording of certain custodial interrogations • Provides new investigative tools to combat cattle theft • Numerous other changes

16. HB 62 – Central Repository • Recognition that technology will allow more precise tracking of individuals in the Central Repository through means other than fingerprints • Bill defines “unique biometric identification” to include facial recognition, fingerprints, palm prints, hand geometry, iris recognition and retinal scan.

17. HB 62 – Central Repository • Central Repository – Procedural Changes: • Clarifies that, if a juvenile is alleged to have violated a traffic law that is not a felony, the juvenile shall not be fingerprinted unless certified as an adult (43.503.3) • If certified, the court shall order that the fingerprint, photograph and certifying papers be submitting to the Central Repository (43.503.4)

18. HB 62 – Central Repository • Prosecutor, including municipal prosecutor, shall notify the Repository of decision not to file a criminal charge on any case where charges had been referred to the prosecutor (43.503.5) • Court clerk, including municipal clerk, shall forward record of all charges filed and all dispositions in cases where the Repository has an arrest or fingerprint record (43.503.6)

19. HB 62 – Central Repository • Clarifies which offenses are reportable: • All felonies • Class A misdemeanors • All violations for driving under the influence of drugs or alcohol • Any offense that can be enhanced to a Class A misdemeanor or higher for subsequent violations • Comparable ordinance violations • All Ch. 566 violations

20. HB 62 - Detainers • What is a Detainer? • The means used by a local prosecutor/law enforcement agency to notify the Dept. of Corrections that a person in custody has a untried indictment pending. • Under revised Sec. 217.450, a detainer is triggered when: • A certified copy of a warrant delivered to the Director of Dept. of Corrections; and • A written request by the agency to place a detainer on the defendant • Then the Director shall lodge a detainer in favor of the requesting agency.

21. HB 62 - Detainers • If the Director fails to comply (i.e. fails to lodge the detainer in favor of the requesting agency), the indictment shall not be dismissed unless the court finds that the offender has been denied the constitutional right to a speedy trial.

22. HB 62 – Vicious Dogs • Some high profile attacks by vicious dogs in Jackson County • Prompted Sen. Bartle (Lee’s Summit) to file legislation addressing this issue • New law provides (Sec. 273.033.1): • A person who shows that he was in “reasonable apprehension of imminent harmful contact” or was acting to protect another from that contact has an absolute defense to criminal prosecution or civil liability

23. HB 62 – Vicious Dogs • Establishing prima facie evidence of “reasonable apprehension of imminent harmful contact” • 2 previous complaints to county sheriff or animal control authority • That dog, unleashed, has trespassed onto complainants property (includes renters) • At least one of the complaints was motivated by concern for safety or substantial damage to livestock or property

24. HB 62 – Vicious Dogs • Failure by Sheriff or animal control authority to notify dog’s owner shall not invalidate the “prima facie” evidence of complainant’s reasonable apprehension. • Sec. 273.036 – Owner or possessor of dog that bites another person while on public property is strictly liable for damages suffered. • May be liable for a fine of up to $1,000.

25. HB 62 – Vicious Dogs • A police dog that bites another animal or person in the course of its official duties is exempt from liability (Sec. 578.022) • If a dog has previously bitten another person or domestic animal without provocation and bites a person on a later occasion, the dog’s owner or possessor commits a Class B misdemeanor (Sec. 578.024)

26. HB 62 – Vicious Dogs • The criminal penalty may be enhanced if: • Bite results in serious injury to any person – Class A misdemeanor • Both 1st and 2nd bite results in serious injury – D felony • Bite results in death – Class C felony - If dog causes serious injury or death, animal control or Sheriff shall immediately seize the dog (Sec. 578.024.2).

27. HB 62 – Vicious Dogs • Once dog is seized, owner is provided written notice and dog is held for 10 days and then destroyed unless the owner files an appeal to circuit court. • If a dog attacks a person engaged in criminal activity, the owner or possessor is not guilty of any crime under Sec. 578.024 or Sec. 273.036.

28. HB 62 - DWI & Alcohol Changes • Director of Revenue may deny a driver’s license when a person has been convicted twice within 5 years of any intoxication related offense • NEW – If one of the offenses is a municipal DWI, law no longer requires that the defendant was represented by an attorney or waived the right to an attorney in writing.

29. HB 62 – DWI & Alcohol • Prohibits the use of beer bongs or other large volume alcohol containers on Missouri rivers (excl. MS, MO, Osage) • Defines “beer bong” as a device intended and designed for rapid consumption • Prohibits possession of polypropylene coolers on or within 50 feet of Missouri rivers • Penalty – Class A misdemeanor

30. HB 62 – DWI & Alcohol • Minors in possession – Implied consent for alcohol test • A person under 21 who: • Purchases or attempts to purchase or possesses alcohol; or • Is visibly intoxicated • Shall be deemed to have consented to breath, blood, saliva or urine test • Standard language that testing must follow Dept. of Health protocols

31. HB 62 – DWI & Alcohol • A person who pleads guilty or is found guilty of a Minor in Possession offense under Sec. 311.325 may apply to the court to expunge “official records of his arrest, plea, trial and conviction” (current law) • Person may not seek to expunge until he/she turns 22

32. HB 62 – Continuous Alcohol Monitoring • Sec. 577.023 defines “continuous alcohol monitoring” – automatic testing of breath, blood or transdermal alcohol concentration levels (i.e. sweat) . . at least once per hour and regularly transmitting the data.” • Goal – to provide a more comprehensive monitoring program for certain DWI offenders • Court – may impose as condition of probation • If ordered, monitoring would last at least 90 days • Offender shall pay the costs

33. HB 62 – Alcohol Monitoring • Continuous monitoring option took effect on 7/9/09 – Emergency Clause. • Reminder – Legislation from 2008 session (SBs 930/947) makes ignition interlock devices mandatory for certain repeat offenders – took effect 7/1/09.

34. HB 62 & SB 26 – Alcohol Beverage Vaporizers • Alcohol Beverage Vaporizers or AWOLs (Alcohol Without Liquid Devices) • Marketed to clubs, bars & individuals • Converts liquid alcohol into a breathable form • Promise of a quicker way to intake alcohol without the hangover effect • Already outlawed in over 20 states

35. HB 62 & SB 26 – Alcohol Beverage Vaporizers • HB 62 & SB 26 both make it a crime to possess an “alcoholic beverage vaporizer” (Sec. 578.255.5) • Class B misdemeanor • HB 62 also outlaws the use or abuse of a number of new substances – ethyl alcohol and a number of nitrites (ex: amyl nitrite – “poppers”)

36. HB 62 – Alcohol • Repeal & Reenactment of 577.029 • Language amended in 2007 to remove requirement that blood draw be done with a non-alcoholic swab • That bill, HB 574, was then challenged as violating the Missouri Constitution as having subject matter not related to the bill title – “Missouri uniform law enforcement records” • This change should result in dismissal of the lawsuit – Change has an Emergency Clause

37. HB 62 – Assault of Officers • Current law – Sec. 565.081, .082 & .083 provides for penalties for a person who assaults a law enforcement officer • HB 62 adds corrections officers, defined to include jailers in political subdivisions, and probation and parole officers

38. HB 62 – Tampering with Officers • Current law – Sec. 565.084 – creates the crime of tampering with a judicial officer • HB 62 expands who is considered a judicial officer: • Juvenile officers • Deputy juvenile officers • Prosecuting or circuit attorneys • Assistant prosecuting or circuit attorneys • Class C felony

39. HB 62 – Sex Offenders • Attorney General Investigative Powers • Sec. 566.013 (new) – provides that, if the Attorney General’s Office is investigating a crime under Ch. 566 (High Tech Crimes Unit) and venue of the alleged criminal conduct is not readily determined, AG may request that Cole Co. Prosecutor seek a subpoena be issued by a Cole Co. Circuit or Associate Circuit Judge • AG shall provide any evidence produced to the appropriate local prosecutor • Similar provision in Sec. 573.013 relating to pornography offenses

40. HB 62 – Sex Offenders • Statutes prohibiting residing/loitering by certain sex offenders: • Sec. 566.147 – Current law prohibits certain offenders who have committed sexual exploitation of children or child porn. offenses from residing within 1,000 feet of a public school or child care facility • HB 62 makes a technical change only

41. HB 62 – Sex Offenders • New Section 566.148 – Prohibits those same offenders from: • knowingly being present or loitering within 500 feet of a daycare; or • Approaching, contacting or communicating with any child under 18 • Exception if the offender is the parent, legal guardian or custodian of student in the building

42. HB 62 – Sex Offenders • Sec. 566.148 – Violation a Class A misdemeanor • Sec. 566.149 – Presence in or loitering near school property – A misdemeanor • Current law prohibits certain sex offenders (same list as previous sections) from loitering near schools or school related functions • New provision – Violation is a Class A misdemeanor, regardless of offender’s knowledge of proximity to school

43. HB 62 – Sex Offenders • Sec. 566.150 – Presence in or loitering near certain public parks • Certain offenders (same group as previous sections) shall not knowingly be present in or loiter within 500 feet of any public park with playground equipment or public swimming pool. • 1st violation – D felony; 2nd violation – C felony

44. HB 62 – Sex Offenders • Sec. 566.155 – Certain offenders; prohibited from youth sports • Certain offenders (same group as other sections) shall not be an: • Athletic coach • Manager; or • Athletic trainer For any sports team if a child under 17 is a member 1st violation – D felony; 2nd violation – C felony

45. HB 62 – Pornography & Related Crimes • Current law (Sections 573.010 – 573.065) requires, as an element of the offense, that the person know “the content and character” of the material. • HB 62, in each of these sections, removes the requirement that the prosecutor show that the defendant knows the “content and character” of the material. • But see Sec. 562.021.3 – “ . . . if the definition of any offense does not expressly prescribe a culpable mental state for any elements of the offense, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly . . .”

46. HB 62 – Pornography & Related Crimes • Effect of changes to Ch. 573 may be negligible at most

47. HB 62 – Sex Offender Registration • Recent Court Decision – • John Doe I, et. al. v. Keathley, SC89727 (Mo.banc 2009) • Because there is a federal law – 42 U.S.C. 16911-16913 – that imposes an independent obligation to register, plaintiffs’ argument that they were exempt from registering under Art. I, Sec. 13 of Missouri Constitution (ex post facto) does not apply under federal law

48. HB 62 – Sex Offender Registration • As a result of this case, Highway Patrol has sent letters to about 4,500 offenders (to last known address) who had previously been deemed exempt from reporting because they had been convicted of their offenses prior to the enactment of Missouri’s registration law. • Nearly 1,000 of those offenders have registered • Local sheriffs may need to work with the Patrol to determine current location of certain offenders and their obligation to register.

49. HB 62 – Sex Offender Registration • New provision – Sec. 589.400.8 • Allows a sex offender to immediately file a petition to remove or exempt name from the registry if: • No physical force or threat of force used • Person was 18 years or younger • Victim was 13 years or older • Person is convicted of one of the following misdemeanor offenses:

50. HB 62 – Petitioning Off Registry • Sec. 566.068 – Child Molestation, 2nd degree • Sec. 566.090 – Sexual Misconduct, 1st degree • Sec. 566.093 – Sexual Misconduct, 2nd degree • Sec. 566.095 – Sexual Misconduct, 3rd degree - Court must, under current law, determine whether the person is a current or potential threat to public safety and prosecuting attorney shall be notified and make all reasonable efforts to notify the victim.