25.1150.04000
Sixty-ninth
Legislative Assembly
of North Dakota
Introduced by
Representatives Klemin, Stemen, Hanson
Senators Davison, Larson
A BILL for an Act to amend and reenact sections 12-59-15 and 12.1-01-04, subdivision b of
subsection 3 of section 12.1-22-01, and sections 12.1-32-07, 12.1-32-08, and 29-07-01.1 of the
North Dakota Century Code, relating to parole and probation violations and court fees; to
provide for a legislative management study; and to provide a penalty.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 12-59-15 of the North Dakota Century Code is
amended and reenacted as follows:
12-59-15. Breach of parole - Hearings - Order of recommitment.
1.When it is alleged that a parolee has violated any of the terms or conditions of parole
established by the parole board or by the department of corrections and rehabilitation,
the director of the department of corrections and rehabilitation may issue a warrant for
the arrest of the parolee.
2.Upon issuance of a warrant of arrest for a parole violation, the running of the time
period of parole must be suspended until the parole board issues a final order under
this section. The parolee is entitled to credit for time spent in physical custody from the
time of arrest until the time the parole board issues a final order.
3.The parolee is entitled to a preliminary hearing, as promptly as is convenient after the
arrest and reasonably near the place of the alleged violation or arrest, to determine
whether there is probable cause to find that the parolee violated any of the terms and
conditions of parole established by the board or by the department of corrections and
rehabilitation.
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ENGROSSED HOUSE BILL NO. 1417
FIRST ENGROSSMENT
with Senate Amendments
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4.The preliminary hearing must be conducted before the director of the department of
corrections and rehabilitation or other hearing officer authorized by the director. The
preliminary hearing must be conducted by a disinterested hearing officer not directly
involved in the supervision of the parolee or by the person bringing the allegation of a
parole violation.
5.If the hearing officer determines there is probable cause to find that the parolee has
violated any of the terms and conditions of parole established by the board or by the
department of corrections and rehabilitation, the board may redetermine the time
remaining in the period of parole to reflect any portion of the period during which the
parolee was not under supervision or not in the custody of law enforcement personnel
in the state.
6.If the hearing officer determines there is probable cause to find that the parolee has
violated any of the terms and conditions of parole established by the board or by the
department of corrections and rehabilitation, the parolee must be returned to the
physical custody of the department of corrections and rehabilitation, transferred to
another correctional facility or the state hospital, or released from actual custody
pursuant to such terms and conditions as may be established by the parole board or
the department of corrections and rehabilitation, pending a final revocation hearing
before the parole board. If the board determines at the final revocation hearing that the
parolee has violated any of the terms and conditions of parole established by the
board or by the department of corrections and rehabilitation, itthe board may order that
the parolee be recommitted to the physical custody of the department of corrections
and rehabilitation to serve all or part of the remaining time of the sentence that has not
been served in custody.
7.At any hearing pursuant to this section a record must be made and the parolee shall
have:
a.Written notice of the purpose of the hearing and the alleged violations.
b.The opportunity to be heard in person and present witnesses and documentary
evidence.
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c.The opportunity to confront and cross-examine adverse witnesses, unless the
hearing officer determines that confrontation would create a risk of harm to the
witness.
d.A written statement as to the reasons for the decision.
8.WhenIf the board determines the parolee has absconded, as defined in section
12.1 - 01 - 04, from supervision, the board may order the parolee to pay the costs of
being returned to the board. Moneys recovered under this subsection must be remitted
to the department of corrections and rehabilitation.
SECTION 2. AMENDMENT. Section 12.1-01-04 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-01-04. General definitions.
As used in this title, unless a different meaning plainly is required:
1."Absconded" means when a probationer, parolee, participant in a pretrial services
program, or participant in a prosecution-led diversion program willfully avoids
supervision by making their whereabouts unknown or fails to report to a supervising
authority.
2. "Act" or "action" means a bodily movement, whether voluntary or involuntary.
2.3."Acted", "acts", and "actions" include, where relevant, "omitted to act" and "omissions
to act".
3.4."Actor" includes, where relevant, a person guilty of an omission.
4.5."Bodily injury" means any impairment of physical condition, including physical pain.
5.6."Court" means any of the following courts: the supreme court, a district court, and
where relevant, a municipal court.
6.7."Dangerous weapon" includes any switchblade or gravity knife, machete, scimitar,
stiletto, sword, or dagger; any billy, blackjack, sap, bludgeon, cudgel, metal knuckles,
or sand club; any slingshot; any bow and arrow, crossbow, or spear; any weapon that
will expel, or is readily capable of expelling, a projectile by the action of a spring,
compressed air, or compressed gas including any such weapon, loaded or unloaded,
commonly referred to as a BB gun, air rifle, or CO2CO2 gun; and any projector of a
bomb or any object containing or capable of producing and emitting any noxious liquid,
gas, or substance.
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7.8."Destructive device" means any explosive, incendiary or poison gas bomb, grenade,
mine, rocket, missile, or similar device.
8.9."Explosive" means gunpowders, powders used for blasting, all forms of high
explosives, blasting materials, fuses (other than electric circuit breakers), detonators
and other detonating agents, smokeless powders, and any chemical compounds,
mechanical mixture, or other ingredients in such proportions, quantities, or packing
that ignition by fire, by friction, by concussion, by percussion, or by detonation of the
compound, or material, or any part thereof may cause an explosion.
9.10."Firearm" means any weapon that will expel, or is readily capable of expelling, a
projectile by the action of an explosive and includes any such weapon, loaded or
unloaded, commonly referred to as a pistol, revolver, rifle, gun, machine gun, shotgun,
bazooka, or cannon.
10.11."Force" means physical action.
11.12."Government" means:
a.The government of this state or any political subdivision of this state;
b.Any agency, subdivision, or department of the state or any political subdivision of
the state, including the executive, legislative, and judicial branches;
c.Any corporation or other entity established by law to carry on any governmental
function; and
d.Any commission, corporation, or agency established by statute, compact, or
contract between or among governments for the execution of intergovernmental
programs.
12.13."Governmental function" includes any activity that one or more public servants are
legally authorized to undertake on behalf of government.
13.14."Harm" means loss, disadvantage, or injury to the person affected, and includes loss,
disadvantage, or injury to any other person in whose welfare the person affected is
interested.
14.15."Included offense" means an offense:
a.That is established by proof of the same or less than all the facts required to
establish commission of the offense charged;
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b.That consists of criminal facilitation of or an attempt or solicitation to commit the
offense charged; or
c.That differed from the offense charged only in that it constitutes a less serious
harm or risk of harm to the same person, property, or public interest, or because
a lesser degree of culpability suffices to establish its commission.
15.16."Includes" should be read as if the phrase "but is not limited to" were also set forth.
16.17."Law enforcement officer" or "peace officer" means a public servant authorized by law
or by a government agency or branch to enforce the law and to conduct or engage in
investigations or prosecutions for violations of law.
17.18."Local" means of or pertaining to any political subdivision of the state.
18.19."Manifest injustice" means a specific finding by the court that the imposition of
sentence is unreasonably harsh or shocking to the conscience of a reasonable
individual, with due consideration of the totality of circumstances.
19.20."Offense" means conduct for which a term of imprisonment or a fine is authorized by
statute after conviction.
20.21."Official action" includes a decision, opinion, recommendation, vote, or other exercise
of discretion by any government agency.
21.22."Official proceeding" means a proceeding heard or which may be heard before any
government agency or branch or public servant authorized to take evidence under
oath, including any referee, hearing examiner, commissioner, notary, or other person
taking testimony or a deposition in connection with any such proceeding.
22.23."Omission" means a failure to act.
23.24.As used in this title and in sections outside this title which define offenses, "person"
includes, where relevant, a corporation, limited liability company, partnership,
unincorporated association, or other legal entity. When used to designate a party
whose property may be the subject of action constituting an offense, the word "person"
includes a government that may lawfully own property in this state.
24.25."Political subdivision" as used in this title and in any statute outside this title which
defines an offense means a county, city, school district, township, and any other local
governmental entity created by law.
25.26."Possesses" means an individual has:
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a.Direct physical control of something on or around the individual's person; or
b.The power and intention to exercise control over something accessible to but not
on or around the individual's person.
26.27."Public servant" as used in this title and in any statute outside this title which defines
an offense means any officer or employee of government, including law enforcement
officers, whether elected or appointed, and any person participating in the
performance of a governmental function. The term does not include witnesses.
27.28."Responsivity factors" means characteristics of an individual which affect the
individual's ability to respond favorably or unfavorably to a treatment goal.
29."Risk assessment" means an initial phase with a secondary process approved by the
department of health and human services for the evaluation of the likelihood a person
that committed an offense will commit another similar offensea validated, standardized
actuarial tool used to identify potential risk factors that increase the likelihood an
individual will reoffend and responsivity factors, when addressed, reduce the likelihood
an individual will reoffend. The initial phase is an assessment tool that is administered
by a trained probation and parole officercorrections professional. A predetermined
score on the initial phase initiates the secondary process, approved by the department
of health and human services, that includesmay include a clinical interview,
psychological testing, and verification through collateral information or
psychophysiological testing, or both. The department of health and human services
shall perform the secondary process of the risk assessment.
28.30."Serious bodily injury" means bodily injury that creates a substantial risk of death or
which causes serious permanent disfigurement, unconsciousness, extreme pain,
permanent loss or impairment of the function of any bodily member or organ, a bone
fracture, or impediment of air flow or blood flow to the brain or lungs.
29.31."Signature" includes any name, mark, or sign written or affixed with intent to
authenticate any instrument or writing.
30.32."Substantial bodily injury" means a substantial temporary disfigurement, loss, or
impairment of the function of any bodily member or organ.
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31.33."Thing of value" or "thing of pecuniary value" means a thing of value in the form of
money, tangible or intangible property, commercial interests, or anything else the
primary significance of which is economic gain to the recipient.
32.34."Tier 1 mental health professional" has the same meaning as provided under section
25-01-01.
SECTION 3. AMENDMENT. Subdivision b of subsection 3 of section 12.1-22-01 of the
North Dakota Century Code is amended and reenacted as follows:
b."Dangerous weapon" means a weapon defined in subsection 6 of section
12.1-01-04 or a weapon the possession of which under the circumstances
indicates an intent or readiness to inflict serious bodily injury.
SECTION 4. AMENDMENT. Section 12.1-32-07 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-32-07. Supervision of probationer - Conditions of probation - Revocation.
1.When the court imposes probation upon conviction for a felony offense subject to
section 12.1-32-09.1 or 12.1-32-02.1, a second or subsequent violation of section
12.1-17-07.1, a second or subsequent violation of any domestic violence protection
order, a violation of chapter 12.1-41, a violation of section 14-09-22, or a felony
offense under chapter 39-08, the court shall place the defendant under the supervision
and management of the department of corrections and rehabilitation. When the court
imposes probation upon conviction or order of disposition in all other felony cases, the
court may place the defendant under the supervision and management of the
department of corrections and rehabilitation. In class A misdemeanor cases, the court
may place the defendant under the supervision and management of the department of
corrections and rehabilitation or other responsible party. In all other cases, the court
may place the defendant under the supervision and management of a community
corrections program other than the department of corrections and rehabilitation. A
community corrections program means a program for the supervision of a defendant,
including monitoring and enforcement of terms and conditions of probation set by the
court.
2.The conditions of probation must be such as the court in its discretion deems
reasonably necessary to ensure that the defendant will lead a law-abiding life or to
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assist the defendant to do so. The court shall provide as an explicit condition of every
probation that the defendant not commit another offense during the period for which
the probation remains subject to revocation. The court shall order supervision costs
and fees of not less than fifty-five dollars per month unless the court makes a specific
finding on record that the imposition of fees will result in an undue hardship. If the
offender has not paid the full amount of supervision fees and costs before completion
or termination of probation, the court may issue an order, after opportunity for hearing,
to determine the amount of supervision fees and costs that are unpaid. The order may
be filed, transcribed, and enforced by the department of corrections and rehabilitation
in the same manner as civil judgments rendered by a district court of this stateThe
department of corrections and rehabilitation may administer a risk assessment for the
evaluation of each defendant placed under the supervision and management of the
department of corrections and rehabilitation. The results of the risk assessment may
be used to set a level of supervision and management and develop an individualized
case plan for the defendant. The case plan may include a list of responsivity factors
and a plan to address any risk factors identified in the risk assessment.
3.The court shall provide as an explicit condition of every probation that the defendant
may not possess a firearm, destructive device, or other dangerous weapon while the
defendant is on probation. Except when the offense is a misdemeanor offense under
section 12.1-17-01, 12.1-17-01.1, 12.1-17-01.2, 12.1-17-05, or 12.1-17-07.1, or
chapter 14-07.1, the court may waive this condition of probation if the defendant has
pled guilty to, or has been found guilty of, a misdemeanor or infraction offense, the
misdemeanor or infraction is the defendant's first offense, and the court has made a
specific finding on the record before imposition of a sentence or a probation that there
is good cause to waive the condition. The court may not waive this condition of
probation if the court places the defendant under the supervision and management of
the department of corrections and rehabilitation. The court shall provide as an explicit
condition of probation that the defendant may not willfully defraud a urine test
administered as a condition of probation. Unless waived on the record by the court,
the court shall also provide as a condition of probation that the defendant undergo
various agreed-to community constraints and conditions as intermediate measures of
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the department of corrections and rehabilitation to avoid revocation, which may
include:
a.Community service;
b.Day reporting;
c.Curfew;
d.Home confinement;
e.House arrest;
f.Electronic monitoring;
g.Residential halfway house;
h.Intensive supervision program;
i.Up to five nonsuccessive periods of incarceration during any twelve-month
period, each of which may not exceed forty-eight consecutive hours;
j.Participation in the twenty-four seven sobriety program; or
k.One period of incarceration during a period of probation not to exceed thirty
consecutive days in lieu of a petition for revocation of probation.
4.When imposing a sentence to probation, probation in conjunction with imprisonment,
or probation in conjunction with suspended execution or deferred imposition of
sentence, the court may impose such conditions as it deems appropriate and may
include any one or more of the following:
a.Work faithfully at a suitable employment or faithfully pursue a course of study or
of career and technical education training that will equip the defendant for
suitable employment.
b.Undergo available medical or psychiatric treatment and remain in a specified
institution if required for that purpose.
c.Attend or reside in a facility established for the instruction, recreation, or
residence of persons on probation.
d.Support the defendant's dependents and meet other family responsibilities.
e.Make restitution or reparation to the victim of the defendant's conduct for the
damage or injury which was sustained or perform other reasonable assigned
work. When restitution, reparation, or assigned work is a condition of probation,
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the court shall proceed as provided in subsection 1 or 2, as applicable, of section
12.1-32-08.
f.Pay a fine imposed after consideration of the provisions of section 12.1-32-05.
g.Refrain from excessive use of alcohol or any use of narcotics or of another
dangerous or abusable drug without a prescription.
h.Permit the probation officer to visit the defendant at reasonable times at the
defendant's home or elsewhere.
i.Remain within the jurisdiction of the court, unless granted permission to leave by
the court or the probation officer.
j.Answer all reasonable inquiries by the probation officer and promptly notify the
probation officer of any change in address or employment.
k.Report to a probation officer at reasonable times as directed by the court or the
probation officer.
l.Submit to a medical examination or other reasonable testing for the purpose of
determining the defendant's use of narcotics, marijuana, or other controlled
substance whenever required by a probation officer.
m.Refrain from associating with known users or traffickers in narcotics, marijuana,
or other controlled substances.
n.Submit the defendant's person, place of residence, or vehicle to search and
seizure by a probation officer at any time of the day or night, with or without a
search warrant.
o.Serve a term of imprisonment of up to one-half of the maximum term authorized
for the offense of which the defendant was convicted.
p.Reimburse the costs and expenses determined necessary for the defendant's
adequate defense when counsel is appointed or provided at public expense for
the defendant. When reimbursement of indigent defense costs and expenses is
imposed as a condition of probation, the court shall proceed as provided in
subsection 4 of section 12.1-32-08.
q.Provide community service for the number of hours designated by the court.
r.Refrain from any subscription to, access to, or use of the internet.
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5.When the court imposes a sentence to probation, probation in conjunction with
imprisonment, or probation in conjunction with suspended execution or deferred
imposition of sentence, the defendant must be given a certificate explicitly setting forth
the conditions on which the defendant is being released.
6.The court, upon notice to the probationer and with good cause, may modify or enlarge
the conditions of probation at any time before the expiration or termination of the
period for which the probation remains conditional. If the defendant violates a
condition of probation at any time before the expiration or termination of the period, the
court may continue the defendant on the existing probation, with or without modifying
or enlarging the conditions, or may revoke the probation and impose any other
sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of
initial sentencing or deferment.
7.The court may continue or modify probation conditions or revoke probation for a
violation of probation conditions occurring before the expiration or termination of the
period of probation notwithstanding that the order of the court is imposed after the
expiration or termination has occurred. The petition for revocation must be issued
within sixty days of the expiration or termination of probation.
8.Jurisdiction over a probationer may be transferred from the court that imposed the
sentence to another court of this state with the concurrence of both courts. Retransfers
of jurisdiction may also occur in the same manner. The court to which jurisdiction has
been transferred under this subsection may exercise all powers permissible under this
chapter over the defendant.
9.Notwithstanding any other provision of law, the court may authorize the defendant to
assist law enforcement officers in an investigation of a criminal offense upon the terms
and conditions as the court may require by written order. The court shall hold a
hearing in camera before issuing an order under this subsection. The order must be
sealed and is subject to inspection only upon order of the court.
10.The department of corrections and rehabilitation shall provide written notice to a
defendant who is in the department's physical custody of any untried petition for
revocation against the defendant of which the department has notice and of the
defendant's right to make a request for final disposition of the petition.
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a.Upon notice of an untried petition for revocation of probation, the defendant may
request final disposition of the petition. The defendant's request must be in
writing and name the court in which the petition for revocation of probation is
pending and the prosecuting official charged with the duty of prosecuting the
petition.
b.The defendant shall submit the request to the department. The department shall
certify the term of commitment under which the defendant is being held, the time
the defendant has served on the sentence, the time remaining to be served,
sentence reduction credit the defendant has earned, the defendant's eligibility for
parole, and whether the parole board has made a decision regarding the
defendant's parole.
c.The department shall send by registered mail, return receipt requested, one copy
of the request and certificate to the court and one copy to the prosecuting official
to whom the request and certificate is addressed.
d.The petition for revocation of probation must be brought to the court for hearing
within ninety days after the receipt of the request and certificate by the court and
prosecuting official. If the petition is not brought to the court for hearing within the
ninety days, the court shall dismiss the petition with prejudice.
e.The parties may stipulate for a continuance or the court may grant a continuance
upon a showing of good cause by either party for a petition under this subsection.
f.If the defendant escapes from custody subsequent to the defendant's execution
of a request for final disposition of a petition for revocation, the request is
considered void.
SECTION 5. AMENDMENT. Section 12.1-32-08 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-32-08. Hearing prior to ordering restitution, reparation, or reimbursement of
indigent defense costs and expenses - Conditions - Collection of restitution for
insufficient funds checks - Continuing appropriation.
1.The court, when sentencing a person adjudged guilty of criminal activities that have
resulted in pecuniary damages, in addition to any other sentence the court may
impose, shall order that the defendant make restitution to the victim or other recipient
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as determined by the court. Restitution must include payment to the owner of real
property that is contaminated by the defendant in the manufacturing of
methamphetamine for the cost of removing the contamination and returning the
property to the property's condition before contamination and to any other person that
has incurred costs in decontaminating the property.
2.If the court has retained jurisdiction after the sentencing hearing for claims of
restitution, to make a claim for restitution, the victim shall submit information by
affidavit or declaration and, as applicable, documentary evidence within the time
specified in the order. The information submitted must describe the items or elements
of loss, itemize the total dollar amounts of restitution claimed, and present facts and
evidence sufficient to support a finding the restitution is directly related to the offense
and the amount awarded. The prosecutor shall serve the defendant with a copy of the
information submitted by the victim no later than sixty days following sentencing.
3.The defendant may challenge restitution but must do so by requesting a hearing within
thirty days of being served with the written notification of the amount of restitution
requested. The hearing request must be made in writing and filed with the court. If no
hearing is requested, the court may enter a judgment ordering restitution. A defendant
may not challenge restitution after the thirty-day time period has passed.
4.In determining the amount of restitution, the court shall take into account the
reasonable damages sustained by the victim or victims of the criminal offense, which
damages are limited to those directly related to the criminal offense and expenses
actually sustained as a direct result of the defendant's criminal action. This can include
an amount equal to the cost of necessary and related professional services and
devices relating to physical, psychiatric, and psychological care. The defendant may
be required as part of the sentence imposed by the court to pay the prescribed
treatment costs for a victim of a sexual offense as defined in chapters 12.1-20 and
12.1-27.2. The court shall fix the amount of restitution or reparation and shall fix the
manner of performance of any condition or conditions of probation established
pursuant to this subsection. The court may order the defendant to disclose income and
assets on forms developed by the state court administrator to facilitate the setting of
an appropriate payment plan. The court shall order restitution be paid to the division of
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adult services for any benefits the division has paid or may pay to the victim under
chapter 54-23.4 unless the court, on the record, directs otherwise. Any payments
made pursuant to the order must be deducted from damages awarded in a civil action
arising from the same incident.
5.An order that a defendant make restitution or reparation as a sentence or condition of
probation, unless the court directs otherwise, may be filed without filing fee,
transcribed, and enforced by the person entitled to the restitution or reparation or by
the division of adult services in the same manner as civil judgments rendered by the
courts of this state may be enforced. Upon thirty days' written notice to the victim's last
known address, the court may order the judgment imposing a duty to pay restitution or
reparation be docketed in the same manner as a civil judgment under section
29-26-22.1.
6.When the restitution ordered by the court under subsection 1 is the result of a finding
that the defendant issued a check or draft without sufficient funds or without an
account, the court shall impose as costs the greater of the sum of ten dollars or an
amount equal to twenty-five percent of the amount of restitution ordered. The costs
imposed under this subsection, however, may not exceed one thousand dollars. The
state-employed clerks of district court shall remit the funds collected as costs under
this subsection to the state treasurer for deposit in the restitution collection assistance
fund. The funds deposited into the restitution collection assistance fund are
appropriated to the judicial branch on a continuing basis for the purpose of defraying
expenses incident to the collection of restitution, including operating expenses and the
compensation of additional necessary personnel. The state's attorneys and
county-employed clerks of district court shall remit the funds collected as costs under
this subsection to the county treasurer to be deposited in the county general fund.
7.The court may order the defendant to perform reasonable assigned work as a
condition of probation, which assigned work need not be related to the offense
charged, but must not be solely for the benefit of a private individual other than the
victim.
8.Under section 12.1-32-07, the court may order that the defendant reimburse indigent
defense costs and expenses as a condition of probation.
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a.Unless it finds that there is no likelihood that the defendant is or will be able to
pay attorney's fees and expenses, the court, in its judgment of conviction, and in
any order or amended judgment following a revocation or other postjudgment
proceeding, shall notify the defendant, the defendant's probation officer, and the
prosecuting attorney of the presumed amount of costs and expenses to be
reimbursed, as determined by the commission on legal counsel for indigents, and
of the right to a hearing on the reimbursement amount. The reimbursement
amount must include an application fee imposed under section 29-07-01.1 if the
fee has not been paid before disposition of the case and the court has not waived
payment of the fee.
b.If the defendant or prosecutor requests a hearing within thirty days of receiving
notice under this subdivision, the court shall schedule a hearing at which the
actual amount of attorney's fees and expenses must be shown. In determining
the amount and method of reimbursement, the court shall consider the financial
resources of the defendant and the nature of the burden that reimbursement of
costs and expenses will impose.
c.A defendant who is required to reimburse indigent defense costs and expenses
as a condition of probation and who is not willfully in default in that
reimbursement may at any time petition the court that imposed the condition to
waive reimbursement of all or any portion of the costs and expenses. If the court
is satisfied that reimbursement of the amount due will impose undue hardship on
the defendant or the defendant's immediate family, the court may waive
reimbursement of all or any portion of the amount due or modify the method of
payment.
d.If at any time the court finds that the defendant is able to reimburse costs and
expenses and has willfully failed to do so, the court may continue, modify, or
enlarge the conditions of probation or revoke probation as provided in
subsection 6 or 7, as applicable, of section 12.1-32-07.
9.If the court finds that the defendant is unable to pay a fine, supervision fee,
reimbursement for indigent defense costs and expenses, or restitution or reparations,
the court may order the defendant to perform reasonable assigned work in lieu of all or
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part of a fine, a supervision fee, reimbursement for indigent defense costs and
expenses, or restitution or reparations. The defendant may not perform reasonable
assigned work in lieu of restitution or reparations unless the person entitled to
restitution or reparations has consented in writing or on the record.
SECTION 6. AMENDMENT. Section 29-07-01.1 of the North Dakota Century Code is
amended and reenacted as follows:
29-07-01.1. Payment of expenses for defense of indigents - Reimbursement of
indigent defense costs and expenses - Indigent defense administration fund - Continuing
appropriation.
1.Lawyers provided to represent indigent persons must be compensated at a
reasonable rate to be determined by the commission on legal counsel for indigents.
Expenses necessary for the adequate defense of an indigent person prosecuted in
district court, other than for a violation of a home rule county's ordinance, when
approved by the commission, must be paid by the state. Expenses necessary for the
adequate defense of an indigent person prosecuted for violation of a home rule
county's ordinance must be paid by the home rule county. Expenses necessary for the
adequate defense of an indigent person prosecuted in municipal court, when approved
by the judge, must be paid by the city in which the alleged offense took place. The city
shall also pay the expenses in any matter transferred to district court pursuant to
section 40-18-06.2 or 40-18-15.1, in any appeal taken to district court from a judgment
of conviction in municipal court pursuant to section 40-18-19, and in an appeal or
postconviction matter seeking relief from a conviction resulting from violation of a
municipal ordinance. A defendant requesting representation by counsel at public
expense, or for whom counsel provided at public expense without a request is
considered appropriate by the court, shall submit an application for indigent defense
services. For an application for indigent defense services in the district court, a
nonrefundable application fee of thirty-five dollars must be paid at the time the
application is submitted. The district court may extend the time for payment of the fee
or may waive or reduce the fee if the court determines the defendant is financially
unable to pay all or part of the fee. If the application fee is not paid before disposition
of the case, the fee amount must be added to the amount to be reimbursed under this
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section. Application fees collected under this subsection must be forwarded for deposit
in the indigent defense administration fund established under subsection 4.
2.A defendant for whom counsel is provided at public expense, subject to this
subsection, shall reimburse the state, home rule county, or city such sums as the
state, home rule county, or city expends on the defendant's behalf.
a.At the time counsel is provided for a defendant, the court shall advise the
defendant of the defendant's potential obligation to reimburse the appropriate
governmental entity the amounts expended on behalf of the defendant.
b.Unless it finds that there is no likelihood that the defendant is or will be able to
pay attorney's fees and expenses, the court, in its judgment of conviction, and in
any order or amended judgment entered following a revocation or other
postjudgment proceeding, shall order the defendant to reimburse the presumed
amount of indigent defense costs and expenses, as determined by the
commission, and shall notify the defendant of the right to a hearing on the
reimbursement amount. If the defendant or prosecutor requests a hearing within
thirty days of receiving notice under this subdivision, the court shall schedule a
hearing at which the actual amount of attorney's fees and expenses must be
shown. In determining the amount of reimbursement and method of payment, the
court shall consider the financial resources of the defendant and the nature of the
burden that reimbursement of costs and expenses will impose.
c.A defendant who is required to reimburse indigent defense costs and expenses
and who is not willfully in default in that reimbursement may at any time petition
the court to waive reimbursement of all or any portion of the attorney's fees and
expenses. If the court is satisfied that reimbursement of the amount due will
impose undue hardship on the defendant or the defendant's immediate family,
the court may waive reimbursement of all or any portion of the amount due or
modify the method of payment.
3.The attorney general, the state's attorney of the home rule county, or the prosecuting
attorney of the city in which the alleged offense took place, if reimbursement has not
been received, shall seek civil recovery of any amounts expended on the defendant's
behalf anytime the attorney general, state's attorney, or city attorney determines the
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person for whom counsel was appointed may have funds to repay the state, home rule
county, or city within six years of the date such amount was paid on that person's
behalf. A person against whom civil recovery is sought under this subsection is entitled
to all exemptions accorded to other judgment debtors. The attorney general, state's
attorney, or prosecuting attorney may contract with a private sector collection agency
for assistance in seeking recovery of such funds. Before referring the matter to a
collection agency, the state's attorney shall notify the person who is the subject of the
collection action.
4.The indigent defense administration fund is a special fund in the state treasury. The
state treasurer shall deposit in the fund all application fees collected under
subsection 1. All moneys in the indigent defense administration fund are appropriated
on a continuing basis to the commission on legal counsel for indigents to be used in
the administration of the indigent defense system.
SECTION 7. LEGISLATIVE MANAGEMENT STUDY - COURT FINES AND FEES. During
the 2025-26 interim, the legislative management shall consider studying court fines and fees,
including fines and fees relating to travel permits, presentence investigations, the drug court
program, electronic monitoring, alcohol monitoring, and the twenty-four seven sobriety program.
The study must consider the total amount collected; rate of fees collected, including any money
expended to collect the fines and fees; an evaluation of practices in other states; and the overall
impacts on a defendant. The legislative management shall report its findings and
recommendations, together with any legislation required to implement the recommendations, to
the seventieth legislative assembly.
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