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Senate Calendar

TUESDAY, FEBRUARY 27, 2007

56th DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

Second Reading

Favorable

H. 131    Amendment to the charter of the village of North Troy......................... 118

                              Government Operations Committee Report........................... 118

Favorable with Recommendation of Amendment

S. 7         Relating to medical marijuana.............................................................. 118

                              Judiciary Committee Report................................................. 118

                              Health and Welfare Committee Report................................. 123

                              Finance Committee Report.................................................. 123

Favorable with Proposals of Amendment

H. 302    Fiscal Year 2007 budget adjustments................................................... 123

                              Appropriations Committee Report........................................ 123

Joint Resolution for Action

JRH 16  Recognizing February 22, 2007 as Hunger Awareness Day.................. 129

NOTICE CALENDAR

Favorable

H. 128    Amendment to the charter of the town of Bradford.............................. 129

Favorable with Recommendation of Amendment

S. 6         Preventing conviction of innocent persons............................................ 129

                        ............................................................ Judiciary Committee Report      129

S. 77       Transferring title to a motor vehicle to a surviving spouse...................... 139

                        Judiciary Committee Report....................................................... 139

Committee Bills for Notice

S. 93       Miscellaneous changes to education law.............................................. 139

                              Finance Committee Report.................................................. 140

S. 116     Miscellaneous election law amendments.............................................. 141

S. 124     Planning and evaluating options for inpatient psychiatric

                              hospital services.................................................................. 141




 

ORDERS OF THE DAY

ACTION CALENDAR

Second Reading

Favorable

H. 131

An act relating to approval of an amendment to the charter of the village of North Troy.

Reported favorably by Senator Doyle for the Committee on Government Operations.

(Committee vote: 4-0-1)

(No House amendments)

Favorable with Recommendation of Amendment

S. 7

An act relating to medical marijuana.

Reported favorably with recommendation of amendment by Senator Campbell for the Committee on Judiciary.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  18 V.S.A. chapter 86 is amended to read:

CHAPTER 86.  THERAPEUTIC USE OF CANNABIS

* * *

Subchapter 2.  Marijuana for Medical Use by Persons with Severe Illness

§ 4472.  DEFINITIONS

For the purposes of this subchapter:

(1)  “Bona fide physician-patient relationship” means a treating or consulting relationship of not less than six months duration, in the course of which a physician has completed a full assessment of the registered patient’s medical history and current medical condition, including a personal physical examination.

(2)  “Debilitating medical condition,” provided that, in the context of the specific disease or condition described in subdivision (A) or (B) of this subdivision (2), reasonable medical efforts have been made over a reasonable amount of time without success to relieve the symptoms, means:

(A)  end of life care for cancer or acquired immune deficiency syndrome; or

(B)  cancer, acquired immune deficiency syndrome, positive status for human immunodeficiency virus, multiple sclerosis, or the treatment of these diseases or medical conditions if:

(i)  the disease or condition or its treatment results in severe, persistent, and intractable symptoms; and

(ii)  in the context of the specific disease or condition, reasonable medical efforts have been made over a reasonable amount of time without success in relieving the symptoms.

(A) cancer, multiple sclerosis, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions, if the disease or the treatment results in severe, persistent, and intractable symptoms; or

(B)  a disease, medical condition, or its treatment that:

(i)  is chronic, progressive, and debilitating; and

(ii)  produces severe, persistent, and one or more of the following intractable symptoms: cachexia or wasting syndrome; severe pain; severe nausea; or seizures.

(3)  “Marijuana” shall have the same meaning as provided in subdivision 4201(15) of this title.

(4)  “Possession limit” means the amount of marijuana collectively possessed between the registered patient and the patient’s registered caregiver which is no more than one four mature marijuana plant plants, two ten immature plants, and two ounces of usable marijuana.

(5)  “Physician” means a person who is licensed:

(A)  under chapter 23 or chapter 33 of Title 26, and is licensed with authority to prescribe drugs under Title 26; or

(B)  to practice medicine and prescribe drugs under the comparable provisions of another jurisdiction.

(6)  “Registered caregiver” means a person who is at least 21 years old who has never been convicted of a drug-related crime and who has agreed to undertake responsibility for managing the well-being of a registered patient with respect to the use of marijuana for symptom relief.

(7)  “Registered patient” means a person who has been issued a registration card by the department of public safety identifying the person as having a debilitating medical condition pursuant to the provisions of this subchapter.

(8)  “Secure indoor facility” means a building or room equipped with locks or other security devices that permit access only by a registered caregiver or registered patient.

(9)  “Usable marijuana” means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, and does not include the seeds, stalks, and roots of the plant.

(10)  “Use for symptom relief” means the acquisition, possession, cultivation, use, transfer, or transportation of marijuana or paraphernalia relating to the administration of marijuana to alleviate the symptoms or effects of a registered  patient’s debilitating medical condition which is in compliance with all the limitations and restrictions of this subchapter.  For the purposes of this definition, “transfer” is limited to the transfer of marijuana and paraphernalia between a registered caregiver and a registered patient.

§ 4473.  REGISTERED PATIENTS; QUALIFICATION STANDARDS AND PROCEDURES

(a)  To become a registered patient, a person must be diagnosed with a debilitating medical condition by a physician in the course of a bona fide physician-patient relationship. 

(b)  The department of public safety shall review applications to become a registered patient using the following procedures:

(1)  A patient with a debilitating medical condition shall submit, under oath, a signed application for registration to the department.  If the patient is under the age of 18 the application must be signed by both the patient and a parent or guardian.  The application shall require identification and contact information for the patient and the patient’s registered caregiver applying for authorization under section 4474 of this title, if any.  The applicant shall attach to the application a copy of relevant portions of the patient’s medical record sufficient to establish that the patient has a debilitating medical condition.

(2)  The department shall contact the physician for purposes of verifying the existence of a bona fide physician-patient relationship and the accuracy of the medical record.  The department may approve an application, notwithstanding the six-month requirement in subdivision 4472(1) of this title, if the department is satisfied that the debilitating medical condition is of recent or sudden onset and that the patient has not had a previous physician who is able to verify the nature of the disease and its symptoms.

(3)  The department shall approve or deny the application for registration in writing within 30 days from receipt of a completed registration application.  If the application is approved, the department shall issue the applicant a registration card which shall include the registered patient’s name and photograph, as well as a unique identifier for law enforcement verification purposes under section 4474d of this title.

(4)(A)  A review board is established.  The medical practice board shall appoint three physicians licensed in Vermont to constitute the review board.  If an application under subdivision (1) of this subsection is denied, within seven days the patient may appeal the denial to the board.  Review shall be limited to information submitted by the patient under subdivision (1) of this subsection, and consultation with the patient’s treating physician.  All records relating to the appeal shall be kept confidential.  An appeal shall be decided by majority vote of the members of the board.

(B)  The board shall meet periodically to review studies, data, and any other information relevant to the use of marijuana for symptom relief.  The board may make recommendations to the general assembly for adjustments and changes to this chapter.

(C)  Members of the board shall serve for three-year terms, beginning February 1 of the year in which the appointment is made, except that the first members appointed shall serve as follows:  one for a term of two years, one for a term of three years, and one for a term of four years.  Members shall be entitled to per diem compensation authorized under section 1010 of Title 32.  Vacancies shall be filled in the same manner as the original appointment for the unexpired portion of the term vacated.

§ 4474.   REGISTERED CAREGIVERS; QUALIFICATION STANDARDS AND PROCEDURES

(a)  A person may submit a signed application to the department of public safety to become a registered patient’s registered caregiver.  The department shall approve or deny the application in writing within 30 days.  The department shall approve a registered caregiver’s application and issue the person an authorization card, including the caregiver’s name, photograph, and a unique identifier, after verifying:

(1)  the person will serve as the registered caregiver for one registered patient only; and

(2)  the person has never been convicted of a drug‑related crime.

(b)  Prior to acting on an application, the department shall obtain from the Vermont criminal information center a Vermont criminal record, an out-of-state criminal record, and a criminal record from the Federal Bureau of Investigation for the applicant.  For purposes of this subdivision, “criminal record” means a record of whether the person has ever been convicted of a drug-related crime.  Each applicant shall consent to release of criminal records to the department on forms substantially similar to the release forms developed by the center pursuant to section 2056c of Title 20.  The department shall comply with all laws regulating the release of criminal history records and the protection of individual privacy.  The Vermont criminal information center shall send to the requester any record received pursuant to this section or inform the department of public safety that no record exists.  If the department disapproves an application, the department shall promptly provide a copy of any record of convictions and pending criminal charges to the applicant and shall inform the applicant of the right to appeal the accuracy and completeness of the record pursuant to rules adopted by the Vermont criminal information center.  No person shall confirm the existence or nonexistence of criminal record information to any person who would not be eligible to receive the information pursuant to this subchapter.

(c)  A registered caregiver may serve only one registered patient at a time, and a registered patient may have only one registered caregiver at a time.

§ 4474a.  REGISTRATION; FEES

(a)  The department shall collect a fee of $100.00 $50.00 for the application authorized by sections 4473 and 4474 of this title.  The fees received by the department shall be deposited into a registration fee fund and used to offset the costs of processing applications under this subchapter.

(b)  A registration card shall expire one year after the date of issue, with the option of renewal, provided the patient submits a new application which is approved by the department of public safety, pursuant to sections section 4473 or 4474 of this title, and pays the fee required under subsection (a) of this section.

§ 4474b.  EXEMPTION FROM CRIMINAL AND CIVIL PENALTIES; SEIZURE OF PROPERTY

* * *

(e)  It shall not be a violation of state nursing home regulations to allow a registered patient to possess or use medical marijuana in a nursing facility.

* * *

and that, after passage, the title of the bill be amended to read:  “AN ACT RELATING TO THE COMPASSIONATE USE OF MARIJUANA FOR MEDICAL PURPOSES.”

(Committee vote: 4-1-0)

Reported favorably with recommendation of amendment by Senator Kevin Mullin for the Committee on Health and Welfare.

The Committee recommends that the bill be amended as recommended by the Committee on Judiciary with the following amendment thereto:

In Sec. 1, 13  V.S.A. § 4472, by striking out subdivision (5) in its entirety and inserting in lieu thereof a new subdivision (5) to read as follows:

(5)  “Physician” means a person who is:

(A)  licensed under chapter 23 or chapter 33 of Title 26, and is licensed with authority to prescribe drugs under Title 26; or

(B)  a physician, surgeon, or osteopathic physician licensed to practice medicine and prescribe drugs under comparable provisions in New Hampshire, Massachusetts or New York. 

(Committee vote: 6-0-0)

Reported favorably by Senator Ayer for the Committee on Finance.

(Committee vote: 4-0-3)

Favorable with Proposals of Amendment

H. 302

An act relating to fiscal year 2007 budget adjustments.

Reported favorably with recommendation of proposals of amendment by Senator Bartlett for the Committee on Appropriations.

     The Committee recommends that the Senate propose to the House to amend the bill as follows:

     First:  By striking out Sec. 8 in its entirety and inserting in lieu thereof a new Sec. 8 to read as follows:

Sec. 8.  Sec. 56 of No. 215 of the Acts of 2006 is amended to read:

Sec. 56.  Vermont court diversion

* * *

     (a)  Court diversion programs may use funds allocated in the appropriation above for increased wages to maintain salaries and benefits.

     Second:  After Sec. 9, by adding a new section to be numbered Sec. 9a to read as follows:

Sec. 9a.  Sec. 63 of No. 215 of the Acts of 2006 is amended to read:

Sec. 63.  Public safety – administration

* * *

     (b)  Of the funds appropriated to the department of public safety $26,000 shall be used to make a grant to the Essex county sheriff department. The commissioner may transfer this amount from line items in this appropriation or other department of public safety appropriations to implement this directive forthwith.

     Third:  By striking out Sec. 11(d) in its entirety

     Fourth:  By striking out Sec. 22 in its entirety and inserting in lieu thereof a new Sec. 22 to read as follows:

Sec. 22.  Sec. 101 of No. 215 of the Acts of 2006 is amended to read:

Sec. 101.  Secretary’s office – Global Commitment

     Grants                                                        792,294,238       807,422,501

Source of funds

     General fund                                              116,901,768       124,205,456

     Special funds                                               12,939,662         14,671,205

     Tobacco fund                                              19,299,711         19,299,711

     State health care resource fund                   153,832,688       153,832,688

     Federal funds                                            487,041,206       493,134,238

     Interdepartmental transfer                    2,279,203                     2,279,203

          Total                                                     792,294,238       807,422,501

***

(b)  In addition to the state funds appropriated in this section, a total estimated sum of $35,594,773 $33,133,325 is anticipated to be certified as state matching funds under the Global Commitment as follows:

(1)  $19,536,7351 $17,075,287 certified state match available from local education agencies.  This amount combined with $27,665,633 $24,379,713 of federal funds appropriated in this section equals a total estimated expenditure of $47,202,367 $41,455,000 for eligible special education school-based Medicaid services under the Global Commitment.  An amount equal to the actual amount of the federal matching funds for eligible special education school-based Medicaid services under global commitment shall be transferred from the Global Commitment fund to the Medicaid reimbursement special fund created in 16 V.S.A. § 2959a.

(2)  $1,497,110 certified state match available from local education agencies for eligible services under the Global Commitment provided to students under Section 504 of the Rehabilitation Act of 1973.

(32$7,459,137 $8,956,247 certified state match available from local education agencies for eligible services under the Global Commitment provided to students through school-based health services, including school nurses.

(43)  $4,215,210 certified state match available from local education and social service agencies for eligible services provided to students in the success beyond six programs eligible persons through the children’s collaborative services program.

(54)  $1,847,186 certified state match available from local designated mental health agencies for eligible mental health services provided under the Global Commitment.

(65)  $1,039,395 certified state match available from local designated developmental services agencies for eligible developmental services provided under the Global Commitment.

***

     Fifth:  After Sec. 22, by adding a new section to be numbered Sec. 22a to read as follows:

Sec. 22a.  GLOBAL COMMITMENT APPROPRIATIONS; TRANSFER;  REPORT

(a)  In order to facilitate the end of year closeout for fiscal year 2007, the secretary of the agency of human services, with approval from the secretary of administration, may make transfers among the appropriations authorized for Medicaid and Medicaid-waiver program expenses.  At least three business days prior to any transfer, the agency shall submit a proposal of transfers to be made pursuant to this section to the joint fiscal office.  A final report on all transfers made under this section shall be made to the joint fiscal committee for review at the September 2007 meeting.  The purpose of this section is to provide the agency with limited authority to modify the appropriations to comply with the terms and conditions of the global commitment for health waiver approved by the Centers for Medicare and Medicaid Services under Section 1115 of the Social Security Act.

     Sixth:  In Sec. 24, by adding a new subsection (c) to read as follows:

     (c)  The director of the office of Vermont health access shall not encumber or expend more than 10 percent of the $3,034,333 allocated in the appropriation above for marketing, outreach and associated internal systems for the Catamount, Medicaid and SCHIP programs until a plan has been reviewed and approved by the commission on health care reform created pursuant to Sec. 277c of No. 71 of the Acts of 2005.  

     Seventh:  By striking out Sec. 25 in its entirety and inserting in lieu thereof a new Sec. 25 to read as follows:

Sec. 25.  Sec. 109 of No. 215 of the Acts of 2006 is amended to read:

Sec. 109.  Office of Vermont health access - Medicaid program – non-Global Commitment long-term care waiver

     Grants                                             172,317 361                 167,782,587

Source of funds

     General fund                                     70,960,289                   69,092,869

     Federal funds                                  101,357,071                   98,689,718

          Total                                           172,317,361                 167,782,587

     (a)  The director of the office of Vermont health access and the commissioner of the department of disabilities, aging and independent living shall provide services to all eligible persons deemed high needs or greater.  The intent of this subsection is that for the remainder of fiscal year 2007 persons who are determined to be high or highest needs and eligible for services under the choices for care waiver shall receive services and not be placed on a waiting list.

     (b)  The director of the office of Vermont health access and the commissioner of the department of disabilities, aging and independent living shall report to the house and senate committees on appropriations by April 1, 2007 with recommendations on:  the methodology to be used for calculating program savings due to the Choices for Care waiver; and a framework for deciding how savings are to be reinvested.

     Eighth:  By striking out Sec. 30 in its entirety and inserting in lieu thereof a new Sec. 30 to read as follows: 

Sec. 30.  Sec. 117 of No. 215 of the Acts of 2006 is amended to read:

Sec. 117.     Health - health protection

          Personal services                        3,282,307                  3,282,307

          Operating expenses                       768,200                     803,200

          Grants                                        1,689,500                  1,689,500

               Total                                     5,740,007                  5,775,007

     Source of funds

          General fund                                  238,513                     151,513

          Special funds                                 904,000                     939,000

          Global Commitment fund                 55,093                     142,093

          Federal funds                              4,239,401                  4,239,401

          Interdepartmental transfer              303,000                     303,000

               Total                                     5,740,007                  5,775,007

     Ninth:  By striking out Sec. 34 in its entirety and inserting in lieu thereof a new Sec. 34 to read as follows:

Sec. 34.  Sec. 121 of No. 215 of the Acts of 2006 is amended to read:

Sec. 121.  Health – alcohol and drug abuse programs

     Personal services                            9,228,703                      9,216,203

     Operating expenses                         1,130,648                      1,130,648

     Grants                                            20,255,145                   20,267,645

          Total                                          30,779,496                   30,614,496

Source of funds

     General fund                                     3,370,025                     3,294,765

     Special funds                                        195,500                        195,500

     Tobacco fund                                   2,382,834                    2,382,834

     Global Commitment fund   15,235,609             15,777,640

     Federal funds                                    9,445,528                     8,813,757

     Interdepartmental transfer      150,000                  150,000

          Total                                          30,779,496                   30,614,496

* * *

     (g)  In addition to the $345,000 of funds allocated for grants to recovery centers in the above appropriation, $12,500 of funds shall be granted to the Vermont’s recovery center network.

     Tenth:  By striking out Sec. 45(a) in its entirety and inserting in lieu thereof a new Sec. 45(a) to read as follows:

     (a)  In fiscal year 2007, the department for children and families may provide financial assistance and support services to families through solely state funded programs in order to maintain the separate state programs and segregated funds program established in subchapter 3 of chapter 11 of Title 33 and to assist the department in complying with the requirements relating to Temporary Assistance to Needy Families contained in the Deficit Reduction Act of 2005 pending further action by the general assembly.  This section shall not be interpreted to modify the requirements for families receiving services or the programs established in subchapter 3 of chapter 11 of Title 33, but is intended to permit the department flexibility in reporting maintenance-of-effort funds.

     Eleventh:  After Sec. 58, by adding two new sections to be numbered Sec. 58a and Sec. 58b to read as follows:

Sec. 58a.  Sec. 177 of No. 215 of the Acts of 2006 is amended to read:

Sec. 177.  Education – adjusted education payment

     Grants                                             1,018,388,625            1,017,888,625

Source of funds

     Education fund                  1,018,388,625 1,017,888,625

* * *

Sec. 58b.  Sec. 180 of No. 215 of the Acts of 2006 is amended to read:

Sec. 180.  Education – small school grants

     Grants                                                       5,360,000           5,618,935

Source of funds

     Education fund                                5,360,000                   5,618,935

     Twelfth:  In Sec. 74(a), by striking out the word “catagory” and inserting in lieu thereof the word category

     Thirteenth:  In Sec. 90(a)(3), by striking out the words “up to”

     Fourteenth:  By striking out Sec. 109 in its entirety and inserting in lieu thereof a new Sec. 109 to read as follows:

Sec. 109.  NEXT GENERATION FUND

(a)  Of the total sum transferred from the fiscal year 2007 general fund to the next generation initiative fund, the sum of $1,700,000 is appropriated as follows:

(1)  The sum of $500,000 is appropriated to the agency of commerce and community development for the issuance of Vermont training program grants pursuant to 10 V.S.A. § 531.

(2)  The sum of $500,000 is appropriated to the workforce education and training fund created in Sec. 157a(d) of No. 62 of the Acts of 1999 as amended by Sec. 14 of No. 212 of the Acts of 2006.

(3)  The sum of $500,000 is appropriated to the Vermont student assistance corporation for its nondegree grant program.

(4)  The sum of $200,000 is appropriated to the  Vermont student assistance corporation for need-based scholarships enabling dual enrollment by high school students in college courses.


     And by renumbering all of the sections of the bill to be numerically correct (including internal references) and adjusting all of the totals to be arithmetically correct.

(Committee vote: 7-0-0)

(No House amendments.)

Joint Resolution for Action

J.R.H. 16

     Joint resolution recognizing February 22, 2007, as Hunger Awareness Day and supporting efforts to eliminate hunger in Vermont by maximizing the use of federal nutrition programs.

     (For text of Resolution, see Senate Journal for February 23, 2007, page 160)

NOTICE CALENDAR

Favorable

H. 128

An act relating to approval of an amendment to the charter of the town of Bradford.

Reported favorably by Senator Coppenrath for the Committee on Government Operations.

(Committee vote: 5-0-0)

Favorable with Recommendation of Amendment

S. 6

An act relating to preventing conviction of innocent persons.

Reported favorably with recommendation of amendment by Senator Sears for the Committee on Judiciary.

     The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  13 V.S.A. chapter 182 is added to read:

CHAPTER 182.  INNOCENCE PROTECTION

Subchapter 1.  Postconviction DNA Testing

§ 5561.  PETITION FOR POSTCONVICTION DNA TESTING

(a)  A person convicted of a qualifying crime may at any time file a petition requesting forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime.  The petition shall contain facts showing that DNA testing may be material to the petitioner’s claim of wrongful conviction.

(b)  As used in this section, “person convicted of a qualifying crime” means a person convicted of:

(1)  one of the following crimes as defined in this title:

(A) arson causing death, § 501;

(B)  assault and robbery with a dangerous weapon, § 608(b);

(C)  assault and robbery causing bodily injury, § 608(c);

(D)  aggravated assault, § 1024;

(E)  murder, § 2301;

(F)  manslaughter, § 2304;

(G)  kidnapping, § 2405;

(H)  unlawful restraint, §§ 2406 and 2407;

(I)  maiming, § 2701;

(J)  sexual assault, § 3252(a)(1) or (a)(2);

(K)  aggravated sexual assault, § 3253;

(L)  burglary into an occupied dwelling, § 1201(c); or

(M)  lewd and lascivious conduct with a child, § 2602; or

(2)  any crime not listed in subdivision (b)(1) of this section, if the person presents specific facts demonstrating that DNA evidence will provide substantial evidence of the person’s innocence, and the court finds that the interests of justice would be served by permitting the petition.   

(c)  The petition shall be filed in the superior court of the county where the conviction was imposed, and shall not be heard by the judge who presided when the original sentence was imposed.  The court shall provide copies of the petition to the attorney general and to the state’s attorney in the district where the conviction was obtained, and the state shall file a response within 30 days after it receives the petition.

(d)  The court shall schedule a hearing on the petition within 90 days after it is filed unless the court dismisses the petition pursuant to subsection (e) of this section.  Time limits under this subsection may be extended for good cause shown or by consent of the parties.

(e)  The court may dismiss the petition if it determines that:

(1)  the petition, response, files, and records conclusively establish that the petitioner is entitled to no relief; or

(2)  the petition was not made to demonstrate innocence or the appropriateness of a lesser sentence and will unreasonably delay the execution of sentence or administration of justice.     

§ 5562.  ASSIGNMENT OF COUNSEL

The court may appoint counsel if the petitioner is unable financially to employ counsel and may order that all necessary costs and expenses incident to the matter, including but not limited to court costs, stenographic services, printing, and reasonable compensation for legal services, be paid by the state from the appropriation to the defender general.  On appeal, the supreme court may make a similar order.

§ 5563.  DISCOVERY

The court may make the following discovery orders at any time after a petition has been filed under this subchapter:

(1)  The court may order the state to locate and provide the petitioner with any documents, notes, logs, or reports relating to items of physical evidence collected in connection with the case or to help the petitioner locate items of biological evidence that the state contends have been lost or destroyed.  The court may further order the state to take reasonable measures to locate biological evidence that may be in its custody or to help the petitioner locate evidence that may be in the custody of a public or private hospital, public or private laboratory, or other facility.

(2)  If evidence has previously been subjected to DNA testing, the court may order production of laboratory reports prepared in connection with the testing and may order production of the underlying data and the laboratory notes.

(3)  If any DNA or other biological evidence testing was previously conducted by either the prosecution or the defense without knowledge of the other party, the court may order that the previous testing be disclosed.

(4)  If the court orders DNA testing under this subchapter, the court shall order the production of any laboratory reports prepared in connection with the testing and may order production of the underlying data, bench notes, or other laboratory notes.

(5)  The results of any postconviction DNA testing conducted pursuant to this subchapter shall be disclosed to the state, the department of corrections, the parole board, the petitioner, and the court.

§ 5564.  PRESERVATION OF BIOLOGICAL EVIDENCE; POLICIES

The department of public safety shall disseminate policies regarding the collection and preservation of biological evidence to all state and local law enforcement agencies on or before July 1, 2007.  Law enforcement agencies shall adhere to the policies distributed pursuant to this section.

§ 5565.  ORDER; NECESSARY FINDINGS; CONFIDENTIALITY

(a)  The court shall grant the petition and order DNA testing if it makes all of the following findings:

(1)  A reasonable probability exists that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through DNA testing at the time of the original prosecution.

(2)  One or more of the items of evidence that the petitioner seeks to have tested is still in existence.

(3)  The evidence to be tested was obtained in connection with the offense that is the basis of the challenged conviction and:

(A)  was not previously subjected to DNA testing; or

(B)  although previously subjected to DNA testing, can be subjected to additional DNA testing that provides a reasonable likelihood of more probative results.

(4)(A)(i)  The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect; or

(ii)  If the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence.

(B)  For purposes of this subchapter, evidence that has been in the custody of a law enforcement agency, a governmental body, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this subdivision.

(b)  The court may designate in its order:

(1)  the type of DNA analysis to be used;

(2)  the testing procedures to be followed;

(3)  the preservation of some portion of the sample for replicating the testing;

(4)  additional DNA testing, if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis.

(c)  DNA profile information from biological samples taken from any person pursuant to a petition under this subchapter shall be confidential and shall be exempt from any law requiring disclosure of information to the public.

§ 5566.  APPEALS

An order entered on the petition may be appealed to the Vermont supreme court pursuant to the Rules of Appellate Procedure.

§ 5567.  CHOICE OF LABORATORY; PAYMENT

(a)  If the court orders DNA testing under this subchapter, the testing shall be conducted at a facility mutually agreed upon by the petitioner and the state and approved by the court.  If the parties are unable to agree, the court shall designate the testing facility and provide the parties with a reasonable opportunity to be heard on the issue.

(b)  The court shall impose reasonable conditions on the testing to protect the parties’ interests in the integrity of the evidence and the testing process.

(c)(1)  The defender general shall bear the costs of testing performed at the state crime laboratory.

(2)  Except as provided in subdivision (3) of this subsection, the court may require the petitioner or the state or both to pay for testing performed at a private laboratory.

(3)  If the state crime laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the state shall bear the costs of testing at a private laboratory which does have such capabilities or resources.

§ 5568.  PROCEDURE AFTER TEST RESULTS OBTAINED

(a)  If the results of forensic DNA testing ordered under this subchapter are favorable to the petitioner, the court shall schedule a hearing as soon as practicable after the results are received to determine the appropriate relief to be granted.  The petitioner and the state shall be permitted to submit motions and be heard at the hearing.

(b)  At or subsequent to the hearing, the court may issue an order directing one or more of the following:

(1)  setting aside or vacating the petitioner’s judgment of conviction, judgment of not guilty by reason of mental disease or defect;

(2)  granting the petitioner a new trial or fact-finding hearing;

(3)  granting the petitioner a new sentencing hearing, commitment hearing, or dispositional hearing;

(4)  discharging the petitioner from custody;

(5)  specifying the disposition of any evidence that remains after the completion of the testing;

(6)  granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence under attack, including documents pertaining to the original criminal investigation and the identities of other suspects; or

(7)  directing the state to place any unidentified DNA profiles obtained from postconviction DNA testing into a state or a federal database, or both.

(c)  An order issued under this section may be appealed to the Vermont supreme court pursuant to the Rules of Appellate Procedure. 

§ 5569.  SUCCESSIVE PETITIONS

(a)  The court shall not be required to entertain a second or successive petition for similar relief on behalf of the same petitioner unless it appears the petition will be assisted by the availability of more advanced DNA technology.

(b)  The court may entertain a second or successive petition if it determines that doing so would serve the interests of justice.

Subchapter 2.  Compensation for Wrongful Convictions

§ 5571.  RIGHT OF ACTION; PROCEDURE

(a)  A person convicted and imprisoned for a crime which the person did not commit shall have a cause of action for damages against the state.

(b)  An action brought under this subchapter shall be filed in Washington County superior court.  Notice of the action shall be served upon the attorney general.

(c)  The Vermont Rules of Civil Procedure shall apply to actions brought under this subchapter, and the plaintiff shall have a right to trial by jury.  The Vermont Rules of Appellate Procedure shall apply to appeals from orders and judgments issued under this subchapter.

(d)  The attorney general may consider, adjust, determine, and settle any claim for damages brought against the state of Vermont under this subchapter.

§ 5572.  COMPLAINT

(a)  A complaint filed under this subchapter shall be supported by facts and shall allege that:

(1)  the complainant has been convicted of a crime, been sentenced to a term of imprisonment, and served all or any part of the sentence; and

(2)  the complainant’s actual innocence has been established by DNA evidence which resulted in the person’s conviction being reversed or vacated, the information or indictment being dismissed, the granting of a pardon, or an acquittal after a second or subsequent trial or through some other means. 

(b)  The court may dismiss the complaint, upon its own motion or upon motion of the state, if it determines that the complaint does not state a claim for which relief may be granted.

§ 5573.  BURDEN OF PROOF; JUDGMENT; DAMAGES 

(a)  A claimant shall be entitled to judgment in an action under this subchapter if the claimant establishes each of the following by a preponderance of the evidence:

(1)  The complainant was convicted of a crime, was sentenced to a term of imprisonment, and served all or any part of the sentence.

(2)(A)  The complainant’s conviction was reversed or vacated, the complainant’s indictment or information was dismissed, or the complainant received an acquittal after a second or subsequent trial; or

(B)  The complainant was pardoned for the crime for which he or she was sentenced.

(3)  DNA evidence establishes that the complainant did not commit the crime for which he or she was sentenced.

(4)  The complainant did not fabricate evidence or commit or suborn perjury during any proceedings related to the crime with which he or she was charged.

(b)  A claimant awarded judgment in an action under this subchapter shall be entitled to $50,000.00 in damages for each year the claimant was incarcerated, adjusted proportionally for partial years served.  The damage award may also include:

(1)  Economic damages, including lost wages and costs incurred by the claimant for his or her criminal defense and for efforts to prove his or her innocence.

(2)  Up to ten years of physical and mental health care through the state employees’ health care system, offset by any amount provided through the claimant’s employers during that time period.

(3)  Compensation for any reasonable reintegrative services and mental and physical health care costs incurred by the claimant for the time period between his or her release from mistaken incarceration and the date of the award.

(4)  Reasonable attorney’s fees and costs for the action brought under this subchapter.  

(c)  Damages awarded under this section:

(1)  shall not be subject to any state taxes, except for the portion of the judgment awarded as attorney’s fees; and

(2)  shall not be offset by any services awarded to the claimant pursuant to this section or by any expenses incurred by the state or any political subdivision of the state, including expenses incurred to secure or maintain the claimant’s custody or to feed, clothe, or provide medical services for the claimant.

(d)  The claimant’s acceptance of a damages award, compromise, or settlement as a result of a claim under this subchapter shall be in writing and, except when procured by fraud, shall be final and conclusive on the claimant, and constitute a complete release by the claimant of any claim against the state and a complete bar to any action by the claimant against the state with respect to the same subject matter. 

§ 5574.  PAYMENT

(a)  Any award made or compromise or settlement against the state of Vermont agreed upon by the attorney general in response to an action brought under this subchapter shall be paid by the state treasurer out of the treasury, and the emergency board shall reimburse the state treasurer therefor from time to time.

(b)  If the state elects to self‑insure for liability as defined in section 5601 of Title 12, any award, compromise, or settlement against the state of Vermont agreed to by the attorney general shall be paid by the treasurer from the liability self-insurance fund.

(c)  To the extent that an award, settlement, or compromise is covered by a policy of liability insurance, payment will be governed by the terms of the policy.

§ 5575.  LIMITATIONS

(a)  Except as provided in subsection (b) of this section, an action for wrongful conviction under this subchapter shall be commenced within three years after the person’s actual innocence is established by the person’s conviction being reversed or vacated, the indictment being dismissed, the granting of a pardon or an acquittal after a second or subsequent trial or through some other means.

(b)(1)  If the state challenges the establishment of the actual innocence of a person entitled to bring an action under this subchapter, the limitations period shall not commence until the challenge is finally resolved.

(2)  If a cause of action under this subchapter accrues before the effective date of this chapter, the action shall be commenced within three years after the effective date.

(3)  If a person entitled to bring an action under this subchapter is not provided the notice required by section 5586 of this title, the person shall have an additional year within which to bring the action.     

§ 5576.  NOTICE OF RIGHT OF ACTION

(a)  A copy of this subchapter shall be provided to a person by a court:

(1)  issuing judicial relief establishing the person’s actual innocence through vacating or reversing the person’s conviction, dismissing the information or indictment, or entering judgment on an acquittal after a second or subsequent trial or through some other means; and

(2)  receiving notice of a pardon.

(b)(1)  A person receiving a copy of this subchapter pursuant to subdivision (a)(1) of this section shall be required to acknowledge its receipt in writing on a form established by the court administrator.  The acknowledgement shall be entered on the docket by the court and shall be admissible in an action filed under this subchapter.

(2)  A person receiving a copy of this subchapter pursuant to subdivision (a)(2) of this section shall be required to acknowledge its receipt in writing on a form established by the parole board.  The acknowledgement shall be retained on file by the parole board as part of its official records and shall be admissible in an action filed under this subchapter.

(c)  The administrative judge and the court administrator shall make reasonable attempts to provide notice of this subchapter to persons whose actual innocence was determined by judicial relief issued consistent with subdivision (a)(1) of this section prior to the effective date of this act.

Sec. 2.  PRESERVATION OF EVIDENCE STUDY COMMITTEE

(a)  A committee is established for the purpose of studying issues related to the preservation of evidence in criminal cases.

(b)  The committee shall consist of the following members:

(1)  one member appointed by the executive director of the department of state’s attorneys and sheriffs, who shall be the chair of the committee;

(2)  one district court clerk appointed by the court administrator;

(3)  one member appointed by the attorney general;

(4)  one member appointed by the Vermont police association;

(5)  a state trooper appointed by the state police bargaining unit of the Vermont state employees’ association;

(6)  one member appointed by the commissioner of public safety;

(7)  the executive director of the Vermont crime lab or designee;

(8)  the defender general;

(9)  one member appointed by the defender general; and

(10)  a staff public defender appointed by the defender general.

(c)  The committee shall consider the following:

(1)  Current statewide policies regarding the preservation of evidence in criminal cases, and whether a statewide policy should be adopted;

(2)  Current policies in local jurisdictions regarding the preservation of evidence in criminal cases, and whether these policies are consistent with one another and with relevant statewide policies;

(3)  Best practices regarding the preservation of evidence in criminal cases;

(4)  The appropriate duration for preservation of evidence, with specific consideration of whether evidence should be preserved while a convicted person is incarcerated or while the person is under other forms of state supervision;

(5)  Whether and how advances in DNA testing technology should effect policies concerning preservation of evidence;

(6)  Whether current facilities provide enough space to preserve the evidence that needs to be preserved; and   

(7)  Whether there should be one central, statewide repository for evidence collected in criminal cases.

(d)  The committee shall have the assistance and cooperation of all state and local agencies and departments.  The committee shall consult with the Innocence Project and with crime victims’ organizations, and may consult with the senate and house committees on judiciary.  The department of public safety shall provide professional and administrative support for the committee. 

(e)  The committee shall report its findings and recommendations, including proposals for legislative action, to the senate and house committees on judiciary no later than December 15, 2007 whereupon the committee shall cease to exist.

(Committee vote: 5-0-0)

Favorable with Recommendation of Amendment

S. 77

An act relating to transferring title to a motor vehicle to a surviving spouse.

Reported favorably with recommendation of amendment by Senator Mullin for the Committee on Judiciary.

     The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  23 V.S.A. § 2023(e) is amended to read:

(e)(1)  Notwithstanding other provisions of the law, and except as provided in subdivision (2) of this subsection, whenever the estate of an individual who dies intestate a person consists principally in whole or in part of an automobile, and the person’s will or other testamentary document does not provide otherwise, the surviving spouse shall be deemed to be the owner of the motor vehicle and title to the same vehicle shall automatically and by virtue hereof pass to said the surviving spouse.  Registration and title of the vehicle in the name of the surviving spouse shall be effected by payment of a transfer fee of $7.00.  This transaction is exempt from the provisions of the purchase and use tax on motor vehicles.

(2)  This subsection shall not apply if the motor vehicle is titled in the name of one or more persons other than the decedent and the surviving spouse.

(Committee vote: 5-0-0)

Committee Bills for Notice

S. 93.

     An act relating to miscellaneous changes to education law.

     By the Committee on Education,

     (Senator Collins for the Committee)

Reported favorably with recommendations of amendment by Senator Condos for the Committee on Finance.

The Committee recommends that the bill be amended as follows:

First:  By adding a new section to be Sec. 3a to read:

Sec. 3a.  16 V.S.A. § 559(e)(1) is amended to read:

(e) Application of this section. Application of this section. Any contract entered into or purchase made in violation of the provisions of this section shall be null and void; provided, however, that:

(1) the provisions of this section shall not apply to contracts for the purchase of books or other materials of instruction or to the purchase of insurance products;

Second:  By striking out Sec. 12 in its entirety and inserting in lieu thereof a new Sec. 12 to read as follows:

Sec. 12.  32 V.S.A. § 5402(a) is amended to read: 

(a)  A statewide education tax is imposed on all nonresidential and homestead property at the following rates:

(1)  the tax rate for nonresidential property shall be $1.59 per $100.00; and

(2)  the tax rate for homestead property shall be $1.10 multiplied by the district spending adjustment for the municipality, per $100.00, of equalized education property value as most recently determined under section 5405 of this title.  The homestead property tax rate for each municipality which is a member of a union or unified union school district shall be calculated as required under subsection (e) of this section; provided, however, the district spending adjustment shall not include excess spending in any district with a total of 20 or fewer students that does not maintain an elementary or high school, in any year in which the district’s excess spending was solely attributable to new special education spending.

Third:  By adding a new section to be numbered Sec. 16 to read as follows:

Sec. 16.  EFFECTIVE DATE

Sec. 12 shall take effect on passage.

(Committee vote: 7-0-0)


S. 116.

An act relating to miscellaneous election law amendments.

By the Committee on Government Operations,

(Senator White for the Committee)

S. 124.

An act relating to planning and evaluating operations for inpatient psychiatric hospital services.

By the Committee on Appropriations,

(Senator Illuzzi for the Committee)

CONFIRMATIONS

The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

Robert Britt of South Burlington - Member of the Vermont Economic Development Authority - By Sen. Condos for the Committee on Finance.  (1/25)

David E. L. Brown of Shelburne - Member of the Board of Libraries - By Sen. Giard for the Committee on Education.  (1/31)

John Rosenthal of Charlotte - Member of the Board of Libraries - By Sen. Doyle for the Committee on Education.  (1/31)

Kenneth Gibbons of Hyde Park - Member of the Vermont Educational and Health Buildings Finance Agency - By Sen. McCormack for the Committee on Finance.  (2/2)

David R. Coates of Colchester - Member of the Municipal Bond Bank - By Sen. Condos for the Committee on Finance.  (2/21)

Paul. Beaulieu of Manchester Center - Member of the Vermont Housing Finance Agency - By Sen. Maynard for the Committee on Finance.  (2/21)

Robert D. Hofmann of Waterbury – Commissioner of the Department of Corrections – By Senator Scott for the Committee on Institutions.  (2/23)

REPORTS ON FILE

Pursuant to the provisions of 2 V.S.A. §20(c), one (1) copy of the following reports is on file in the office of the Secretary of the Senate:

     111.  Implementation of Act 114 at the Vermont State Hospital Report.  (Agency of Human Services, Dept. of Health, Division of Mental Health)  (February 2007).

     112.  Weighting for Secondary and Elementary Students 2007 Report on Act 182, Section 20(a).  (Department of Education, Finance Division)  (February 2007).

     113.  CHANGE - The Implementation of Act 114 at the Vermont State Hospital Report.  (Agency of Human Services, Department of Health, Division of Mental Health)  (February 2007).

     114.  Aquatic Nuisance Sticker Program Legislative Report.  (Agency of Natural Resources, Department of Environmental Conservation)  (February 2007).

     115.  Environmental Contingency Fund Status Report for fiscal year 2006.  (Department of Environmental Conservation)  (February 2007).

PUBLIC HEARINGS

Tuesday, February 27, 2007 - 6:30-9:30 P.M. - House Chamber - Re:  H. 44 - An act relating to patient choice and control at end of life - House Committee on Human Services and other relevant committees.

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us