HB 2044
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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 HB 2044
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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. Requires 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
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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.