2001 Legislation
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HOUSE BILL NO. 147 – Military, arrests, trials

HOUSE BILL NO. 147

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Daily Data Tracking History



H0147.........................................by TRANSPORTATION AND DEFENSE
MILITARY - Amends existing law relating to the state militia to provide
that certain members may demand trial by court-martial in lieu of
nonjudicial punishment; to delete a reference to notice of declared
emergency; to broaden authority of commanding officers to arrest certain
members of the Idaho military; to provide a procedure following arrest; to
delete reference to a probable cause finding that a member received
adequate notice of a declared emergency; to provide for issuance and
service of warrants; to provide for arrest and incarceration; to provide
for rules of procedure; and to provide that enforcement of the Idaho Code
of Military Justice shall conform as nearly as practicable to specified
rules and case precedent.
                                                                        
02/05    House intro - 1st rdg - to printing
02/06    Rpt prt - to Transp
02/07    Rpt out - rec d/p - to 2nd rdg
02/08    2nd rdg - to 3rd rdg
02/13    3rd rdg - PASSED - 64-2-4
      AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz,
      Bradford, Bruneel, Campbell, Chase, Clark, Collins, Cuddy, Deal,
      Denney, Ellis, Eskridge, Field(13), Field(20), Gagner, Gould, Hadley,
      Hammond, Harwood, Henbest, Higgins, Hornbeck, Jaquet, Jones, Kellogg,
      Kendell, Kunz, Lake, Langford, Loertscher, Mader, Marley, Meyer,
      Montgomery, Mortensen, Moyle, Pearce, Pischner, Pomeroy, Raybould,
      Ridinger, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd, Smith,
      Smylie, Stevenson, Stone, Swan, Tilman, Trail, Wheeler, Wood, Young
      NAYS -- Crow, McKague
      Absent and excused -- Callister, Ellsworth, Moss, Mr. Speaker
    Floor Sponsor -- Bruneel
    Title apvd - to Senate
02/14    Senate intro - 1st rdg - to St Aff
03/15    Rpt out - rec d/p - to 2nd rdg
03/16    2nd rdg - to 3rd rdg
03/20    3rd rdg - PASSED - 35-0-0
      AYES -- Andreason, Boatright, Branch, Brandt, Bunderson, Burtenshaw,
      Cameron, Danielson, Darrington, Davis, Deide, Dunklin, Frasure,
      Geddes, Goedde, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee,
      Lodge, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen,
      Stegner, Stennett, Thorne, Wheeler, Whitworth, Williams,
      NAYS -- None
      Absent and excused -- None
    Floor Sponsor -- Darrington
    Title apvd - to House
03/21    To enrol
03/22    Rpt enrol - Sp signed - Pres signed - to Gov
03/23    Governor signed
         Session Law Chapter 153
         Effective: 07/01/01

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 147
                                                                        
                          BY TRANSPORTATION AND DEFENSE COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO STATE MILITIA; AMENDING SECTION 46-1107, IDAHO  CODE,  TO  PROVIDE
  3        THAT CERTAIN MEMBERS MAY DEMAND TRIAL BY COURT-MARTIAL IN LIEU OF NONJUDI-
  4        CIAL  PUNISHMENT  AND  TO  MAKE  TECHNICAL  CORRECTIONS;  AMENDING SECTION
  5        46-1108, IDAHO CODE, TO STRIKE A REFERENCE TO  NOTICE  OF  DECLARED  EMER-
  6        GENCY,  TO  BROADEN THE AUTHORITY OF COMMANDING OFFICERS TO ARREST CERTAIN
  7        MEMBERS OF THE IDAHO  MILITARY,  TO  PROVIDE  FOR  A  PROCEDURE  FOLLOWING
  8        ARREST,  TO  STRIKE  REFERENCE  TO  PROBABLE CAUSE FINDING THAT THE MEMBER
  9        RECEIVED ADEQUATE NOTICE OF DECLARED EMERGENCY, TO  PROVIDE  FOR  ISSUANCE
 10        AND  SERVICE  OF  WARRANTS,  TO PROVIDE FOR ISSUANCE OF ARREST WARRANTS BY
 11        CONVENING AUTHORITIES FOR PARTICULAR MILITARY  PERSONNEL  TO  CERTAIN  LAW
 12        ENFORCEMENT  OFFICERS, TO PROVIDE FOR ARREST AND INCARCERATION AND TO MAKE
 13        A TECHNICAL CORRECTION; AND AMENDING SECTION 46-1124, IDAHO CODE, TO  PRO-
 14        VIDE  FOR  RULES OF PROCEDURE AND TO PROVIDE THAT ENFORCEMENT OF THE IDAHO
 15        CODE OF MILITARY JUSTICE SHALL CONFORM AS NEARLY AS PRACTICABLE TO  SPECI-
 16        FIED RULES AND CASE PRECEDENT.
                                                                        
 17    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 18        SECTION  1.  That  Section 46-1107, Idaho Code, be, and the same is hereby
 19    amended to read as follows:
                                                                        
 20        46-1107.  COMMANDING OFFICER'S NONJUDICIAL PUNISHMENT. (1) Any  commanding
 21    officer,  not  necessarily the accused's immediate commanding officer, may, in
 22    addition to or in lieu of admonition or reprimand, impose one (1) or  more  of
 23    the  following  disciplinary  punishments  for minor offenses punishable under
 24    this code chapter, without  the  intervention  of  a  court-martial.  However,
 25    except in the case of a member attached to or embarked on a vessel, punishment
 26    may  not  be  imposed  upon  any  member under this chapter if the member has,
 27    before the imposition of punishment, demanded trial by court-martial  in  lieu
 28    of the punishment.
 29        (a)  Upon officers of his command:
 30             (i)   Restriction  to  certain specified limits, with or without sus-
 31             pension from duty, for not more than seven (7) consecutive duty  days
 32             during any period or periods of duty;
 33             (ii)  If imposed by a general officer:
 34                  1.  Restriction to quarters for not more than seven (7) consecu-
 35                  tive duty days during any period or periods of duty;
 36                  2.  Restriction  to  certain  specified  limits, with or without
 37                  suspension from duty, for not more than fourteen (14) duty  days
 38                  during any period or periods of duty;
 39                  3.  Fine, not to exceed two hundred dollars ($200).
 40        (b)  Upon other personnel of his command:
 41             (i)   Reduction  to  the next inferior grade, if the grade from which
 42             demoted is within the promotion authority of the officer imposing the
 43             reduction or any officer subordinate  to  the  one  who  imposes  the
                                                                        
                                           2
                                                                        
  1             reduction;
  2             (ii)  Extra  duties,  including  fatigue or other duties for not more
  3             than seven (7) consecutive duty days during any period or periods  of
  4             duty;
  5             (iii) Restriction  to  certain specified limits, with or without sus-
  6             pension from duty for not more than seven (7) consecutive  duty  days
  7             during any period or periods of duty;
  8             (iv)  Fine, not to exceed seventy-five dollars ($75.00);
  9             (v)   If imposed by a commander of the rank of major or above:
 10                  1.  Reduction  to  the  lowest or any intermediate pay grade, if
 11                  the grade from which demoted is within the  promotion  authority
 12                  of  the  officer  imposing the reduction, but an enlisted member
 13                  above the grade of E-4 may not be  reduced  more  than  two  (2)
 14                  grades;
 15                  2.  Extra  duties,  including  fatigue  or other duties, for not
 16                  more than fourteen (14) consecutive duty days during any  period
 17                  or periods of duty;
 18                  3.  Restriction  to  certain  specified  limits, with or without
 19                  suspension from duty, for not more than fourteen  (14)  consecu-
 20                  tive duty days during any period or periods of duty;
 21                  4.  Fine, not to exceed one hundred dollars ($100).
 22    No  two (2) or more of the punishments of extra duties and restrictions may be
 23    combined to run consecutively in the maximum amount imposable for each.  When-
 24    ever any of those punishments are combined to run consecutively, there must be
 25    an apportionment so that the total period for both punishments will not exceed
 26    the maximum imposable for either punishment.
 27        (2)  The  member  shall  be  given  written  notification of a commander's
 28    intention to impose punishment under this section and an opportunity to make a
 29    personal presentation to the commander  proposing  to  impose  the  punishment
 30    prior  to  imposition  of punishment and of his right to appeal within two (2)
 31    duty days to the next higher authority.
 32        (3)  The officer who imposes the punishment authorized in  subsection  (1)
 33    of  this  section,  or  his  successor  in  command, may, at any time, suspend
 34    probationally any part or amount of the unexecuted punishment imposed and  may
 35    suspend  probationally  a  reduction  in grade imposed under subsection (1) of
 36    this section, whether or not executed. In addition, he may, at any time, remit
 37    or mitigate any part or amount of the unexecuted punishment  imposed  and  may
 38    set  aside in whole or in part the punishment, whether executed or unexecuted,
 39    and restore all rights and privileges affected. When mitigating  extra  duties
 40    to  restriction,  the  mitigated  punishment shall not be for a greater period
 41    than the punishment originally imposed.
 42        (4)  A person punished under this section  who  considers  his  punishment
 43    unjust  or  disproportionate  to  the  offense  may  appeal to the next higher
 44    authority by delivering written notice of the appeal within two (2) duty  days
 45    after  receipt  of written notification of the punishment. The appeal shall be
 46    promptly decided, but the  person  punished  shall  not  in  the  meantime  be
 47    required to undergo the punishment adjudged. The higher authority may exercise
 48    the  same  powers  with  respect to the punishment imposed as may be exercised
 49    under subsection (3) of this section by the officer who  imposed  the  punish-
 50    ment.
 51        (5)  The  imposition and enforcement of disciplinary punishment under this
 52    section for any act or omission shall not be a bar to trial  by  court-martial
 53    for  a  serious offense growing out of the same act or omission, and not prop-
 54    erly punishable under this section, but shall be considered  in  imposing  any
 55    sentence  for  a court-martial conviction arising out of the same act or omis-
                                                                        
                                           3
                                                                        
  1    sion.
  2        (6)  All records of nonjudicial punishment under  this  section  shall  be
  3    destroyed upon the termination of the person's current period of enlistment or
  4    after  two (2) years of honorable service in the military without further dis-
  5    ciplinary action under this section or a conviction by  court-martial,  which-
  6    ever occurs first.
  7        (7)  The term "minor offenses," as used in this section, means any acts or
  8    omissions constituting offenses under the punitive sections of this code chap-
  9    ter, unless deemed to be a serious offense by the convening authority.
                                                                        
 10        SECTION  2.  That  Section 46-1108, Idaho Code, be, and the same is hereby
 11    amended to read as follows:
                                                                        
 12        46-1108.  ARREST. Arrest of members of the Idaho military not  in  federal
 13    service by members of the Idaho military while acting in their military capac-
 14    ity is prohibited, except in the following circumstances:
 15        (1)  If any member of the Idaho military fails or refuses to report to his
 16    appointed  place of duty, upon adequate notice of an emergency declared by the
 17    governor, the his commanding officer of the member's  unit  is  authorized  to
 18    arrest  or  cause  to  be arrested such member or cause him to be arrested and
 19    have him brought before the commanding officer at  his  unit  or  organization
 20    headquarters, whether such headquarters be located within or without the bord-
 21    ers  of  the state. After such an arrest, the commanding officer is authorized
 22    to transport, or cause to be transported, such member to his  appointed  place
 23    of duty, whether within or without the borders of the state. Furthermore, if a
 24    commander finds that probable cause exists to believe that a minor offense has
 25    been  committed  by  a  member  of  his command, he may cause the member to be
 26    arrested and brought before him for the purpose of processing nonjudicial pun-
 27    ishment under section 46-1107, Idaho  Code.  If  military  personnel  are  not
 28    available  for  the purpose of making the arrest, or if the commanding officer
 29    ordering the arrest deems it advisable, he may issue a warrant, based  upon  a
 30    finding  that  probable  cause exists that the member has failed or refused to
 31    report as ordered after receiving adequate  notice  of  such  order  during  a
 32    declared  emergency,  to any sheriff or peace officer authorized to serve such
 33    warrant  in the same manner as other warrants of arrest, and such  sheriff  or
 34    peace  officer shall serve such warrants of arrest immediately, whenever prac-
 35    ticable, and make return thereof to the commanding officer  issuing  the  war-
 36    rant.
 37        (2)  If any member of the Idaho military has had charges preferred against
 38    him  under  this code chapter, and the convening authority to whom the charges
 39    have been forwarded has found that probable cause exists that the offense  was
 40    committed  by  the  accused  and that the incarceration of the accused pending
 41    court-martial is required because of  special  circumstances  found  to  exist
 42    which  warrant  such incarceration, then the convening authority is authorized
 43    to arrest such member or cause him to be arrested and have him confined  pend-
 44    ing  trial.  If military personnel are not available for the purpose of making
 45    the arrest, or if the convening authority deems it advisable, he may  issue  a
 46    warrant  to  any  sheriff or peace officer authorized to serve such warrant in
 47    the same manner as other warrants of arrest, and said sheriff or peace officer
 48    shall effect the arrest and hold the accused in the county jail of the  county
 49    in which the arrest is effected. Furthermore, if a commander finds that proba-
 50    ble  cause  exists  that a minor offense has been committed by a member of his
 51    command, he may cause the member to be arrested and brought before him for the
 52    purpose of processing nonjudicial  punishment  under  section  46-1107,  Idaho
 53    Code.  If  military  personnel are not available for the purpose of making the
                                                                        
                                           4
                                                                        
  1    arrest, or if the convening authority deems it advisable, he may issue a  war-
  2    rant  to  any sheriff or peace officer authorized to serve such warrant in the
  3    same manner as other warrants of arrest, and said  sheriff  or  peace  officer
  4    shall  effect the arrest and hold the accused in the county jail of the county
  5    in which the arrest is effected. The arresting officer shall return said  war-
  6    rant  to the convening authority and notify him of the arrest and the location
  7    of the arrestee so that  the  convening  authority  may  further  process  the
  8    charges  against  the accused. Upon receipt of the notification of arrest, the
  9    commanding officer shall direct that the arrestee  be  retrieved  and  brought
 10    before him within twenty-four (24) hours.
 11        (3)  If any member of the Idaho military is accused of an offense against
 12    a  civil authority, any other member of the Idaho military  may, on request by
 13    a civil authority, arrest such accused member, but  in  such  case,  immediate
 14    steps  must be taken to deliver such member forthwith to the appropriate civil
 15    authorities.
                                                                        
 16        SECTION 3.  That Section 46-1124, Idaho Code, be, and the same  is  hereby
 17    amended to read as follows:
                                                                        
 18        46-1124.  RULES  OF PROCEDURE AND EVIDENCE. The military rules of evidence
 19    prescribed by the president of the United States  shall  apply  in  all  cases
 20    tried  under this code Enforcement of the Idaho code of military justice shall
 21    conform as nearly as practicable to  the  rules  of  courts-martial,  military
 22    rules  of  evidence,  and  case  precedent  of  the armed forces of the United
 23    States, except where in conflict with other provisions of this chapter.

Statement of Purpose / Fiscal Impact


                      STATEMENT OF PURPOSE
                            RS 10571C1
This proposal amends four sections of the Idaho Code (I.C.  46-1107,
 46-1108, and  46-1124) to clarify three issues of concern under the
 Idaho Code of Military Justice, including:
    
   1.  46-1107   Provides Guard Members with the option to decline 
        Commander's Nonjudicial punishment and demand trial by court-
        martial; 
   2.  46-1108   Clarifies the arrest provisions for Guard members 
        that fail to report for military duties;
   3.  46-1124   Clarifies rules and evidentiary issues under the 
        ICMJ, making them more full compliant with the federal rules 
        of the Armed Forces. 
    
                          FISCAL IMPACT
                                   
There is no direct fiscal impact from this proposal. 
    
    
    
CONTACT
    Name:   John Norris
    Agency: Idaho Military Division
    Phone:  422-5471
    DFM:      190-06
    
    

Statement of Purpose/Fiscal Impact              H 147