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First Substitute H.B. 331
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6 AN ACT RELATING TO STATE AFFAIRS IN GENERAL; AMENDING THE CRIME
7 VICTIMS' REPARATIONS ACT TO ALLOW THE BOARD TO ALLOCATE MONIES TO
8 OTHER VICTIM SERVICES; ELIMINATING THE TIME LIMIT FOR FILING A CLAIM;
9 EXEMPTING CRIME VICTIMS REPARATIONS FROM THE ADMINISTRATIVE
10 PROCEDURES ACT; AND MAKING TECHNICAL CORRECTIONS.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 63-25a-402, as last amended by Chapter 282, Laws of Utah 1998
14 63-25a-403, as renumbered and amended by Chapter 242, Laws of Utah 1996
15 63-25a-404, as last amended by Chapter 308, Laws of Utah 1997
16 63-25a-406, as renumbered and amended by Chapter 242, Laws of Utah 1996
17 63-25a-409, as last amended by Chapter 308, Laws of Utah 1997
18 63-25a-410, as last amended by Chapter 308, Laws of Utah 1997
19 63-25a-411, as last amended by Chapter 308, Laws of Utah 1997
20 63-25a-412, as renumbered and amended by Chapter 242, Laws of Utah 1996
21 63-25a-415, as renumbered and amended by Chapter 242, Laws of Utah 1996
22 63-25a-419, as renumbered and amended by Chapter 242, Laws of Utah 1996
23 63-25a-428, as renumbered and amended by Chapter 242, Laws of Utah 1996
24 REPEALS:
25 63-25a-425, as renumbered and amended by Chapter 242, Laws of Utah 1996
26 63-25a-426, as renumbered and amended by Chapter 242, Laws of Utah 1996
27 63-25a-427, as renumbered and amended by Chapter 242, Laws of Utah 1996
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 63-25a-402 is amended to read:
30 63-25a-402. Definitions.
31 As used in this chapter:
32 (1) "Accomplice" means a person who has engaged in criminal conduct as defined in
33 Section 76-2-202 .
34 (2) "Board" means the Crime Victims' Reparations Board created under Section
35 63-25a-404 .
36 (3) "Bodily injury" means physical pain, illness, or any impairment of physical condition.
37 (4) "Claim" means:
38 (a) the [
39 and
40 (b) the formal action taken by a victim to apply for reparations pursuant to Sections
41 63-25a-401 through 63-25a-428 .
42 (5) "Claimant" means any of the following claiming reparations under this chapter:
43 (a) a victim;
44 (b) a dependent of a deceased victim;
45 (c) a representative other than a collateral source; or
46 (d) the person or representative who files a claim on behalf of a victim.
47 (6) "Child" means an unemancipated person who is under 18 years of age.
48 (7) "Collateral source" means the definition as provided in Section 63-25a-413 .
49 (8) "Contested case" means a case which the claimant contests, claiming the award was
50 either inadequate or denied, or which a county attorney, a district attorney, a law enforcement
51 officer, or other individual related to the criminal investigation proffers reasonable evidence of the
52 claimant's lack of cooperation in the prosecution of a case after an award has already been given.
53 (9) (a) "Criminally injurious conduct" other than acts of war declared or not declared
54 means conduct that:
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59 conduct possessed the capacity to commit the conduct; and
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61 aircraft, or water craft, unless the conduct is intended to cause bodily injury or death, or is conduct
62 which is or would be punishable under Title 76, Chapter 5, Offenses Against the Person, or as any
63 offense chargeable as driving under the influence of alcohol or drugs[
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65 U.S.C. 2331 committed outside of the United States against a resident of this state. "Terrorism"
66 does not include an "act of war" as defined in 18 U.S.C. 2331.
67 (10) "Dependent" means a natural person to whom the victim is wholly or partially legally
68 responsible for care or support and includes a child of the victim born after his death.
69 (11) "Dependent's economic loss" means loss after the victim's death of contributions of
70 things of economic value to his dependent, not including services the dependent would have
71 received from the victim if he had not suffered the fatal injury, less expenses of the dependent
72 avoided by reason of victim's death.
73 (12) "Dependent's replacement services loss" means loss reasonably and necessarily
74 incurred by the dependent after the victim's death in obtaining services in lieu of those the decedent
75 would have performed for his benefit if he had not suffered the fatal injury, less expenses of the
76 dependent avoided by reason of the victim's death and not subtracted in calculating the dependent's
77 economic loss.
78 (13) "Director" means the director of the Reparations Office.
79 (14) "Disposition" means the sentencing or determination of penalty or punishment to be
80 imposed upon a person:
81 (a) convicted of a crime;
82 (b) found delinquent; or
83 (c) against whom a finding of sufficient facts for conviction or finding of delinquency is
84 made.
85 (15) "Economic loss" means economic detriment consisting only of allowable expense,
86 work loss, replacement services loss, and if injury causes death, dependent's economic loss and
87 dependent's replacement service loss. Noneconomic detriment is not loss, but economic detriment
88 is loss although caused by pain and suffering or physical impairment.
89 (16) "Elderly victim" means a person 60 years of age or older who is a victim.
90 (17) "Fraudulent claim" means a filed claim based on material misrepresentation of fact
91 and intended to deceive the reparations staff for the purpose of obtaining reparation funds for
92 which the claimant is not eligible as provided in Section 63-25a-410 .
93 (18) "Law enforcement officer" means a law enforcement officer as defined in Section
94 53-13-103 .
95 (19) "Medical examination" means a physical examination necessary to document
96 criminally injurious conduct but does not include mental health evaluations for the prosecution and
97 investigation of a crime.
98 (20) "Mental health counseling" means outpatient and inpatient counseling necessitated
99 as a result of criminally injurious conduct. The definition of mental health counseling is subject
100 to rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
101 Rulemaking Act.
102 (21) "Misconduct" as provided in Subsection 63-25a-412 (1)(b) means conduct by the
103 victim which was attributable to the injury or death of the victim as provided by rules promulgated
104 by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
105 (22) "Noneconomic detriment" means pain, suffering, inconvenience, physical impairment,
106 and other nonpecuniary damage, except as provided in this chapter.
107 (23) "Pecuniary loss" does not include loss attributable to pain and suffering except as
108 otherwise provided in this chapter.
109 (24) "Offender" means a person who has violated the criminal code through criminally
110 injurious conduct regardless of whether he is arrested, prosecuted, or convicted.
111 (25) "Offense" means a violation of the criminal code.
112 (26) "Perpetrator" means the person who actually participated in the criminally injurious
113 conduct.
114 (27) "Personal property" has the same definition as provided in Section 68-3-12 .
115 (28) "Reparations Office" means the office of the reparations staff for the purpose of
116 carrying out this chapter.
117 (29) "Reparations officer" means a person employed by the Reparations Office to
118 investigate claims of victims and award reparations under this chapter, and includes the director
119 when he is acting as a reparations officer.
120 (30) "Reparations staff" means the director, the reparations officers, and any other staff
121 employed to administer the Crime Victims' Reparations Act.
122 (31) "Replacement service loss" means expenses reasonably and necessarily incurred in
123 obtaining ordinary and necessary services in lieu of those the injured person would have
124 performed, not for income but the benefit of himself or his dependents if he had not been injured.
125 (32) "Representative" means the victim, immediate family member, legal guardian,
126 attorney, conservator, executor, or an heir of a person but does not include service providers.
127 (33) "Restitution" means money or services an appropriate authority orders an offender
128 to pay or render to a victim of the offender's conduct.
129 (34) "Secondary victim" means a person who [
130 the criminally injurious conduct subject to rules promulgated by the board pursuant to Title 63,
131 Chapter 46a, Utah Administrative Rulemaking Act.
132 (35) "Service provider" means a person or agency who provides a service to crime victims
133 for a monetary fee except attorneys as provided in Section 63-25a-424 .
134 (36) "Trust fund" means the Crime Victim Reparation Trust Fund under Title 63, Chapter
135 63a.
136 (37) (a) "Victim" means a person who suffers bodily or psychological injury or death as
137 a direct result of criminally injurious conduct or of the production of pornography in violation of
138 Sections 76-5a-1 through 76-5a-4 if the person is a minor.
139 (b) "Victim" does not include a person who participated in or observed the judicial
140 proceedings against an offender unless otherwise provided by statute or rule.
141 (c) "Victim" includes[
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143 resident of this state who is injured or killed by an act of terrorism, as defined in 18 U.S.C. 2331,
144 committed outside of the United States.
145 (38) "Work loss" means loss of income from work the injured victim would have
146 performed if he had not been injured and expenses reasonably incurred by him in obtaining
147 services in lieu of those he would have performed for income, reduced by any income from
148 substitute work he was capable of performing but unreasonably failed to undertake.
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155 Section 2. Section 63-25a-403 is amended to read:
156 63-25a-403. Restitution -- Reparations not to supplant restitution.
157 (1) A reparations award shall not supplant restitution as established under Section
158 76-3-201 or as established by any other provisions.
159 (2) The court shall not consider a reparations award when determining the order of
160 restitution nor when enforcing restitution.
161 (3) If, due to reparation payments to a victim, the Reparations Office is assigned under
162 Section 63-25a-419 a claim for the victim's judgment for restitution or a portion of the restitution,
163 the Reparations Office may file with the sentencing court a notice of the assignment. The notice
164 of assignment shall be signed by the victim and a Reparations Officer and shall state the amount
165 of the claim assigned.
166 (4) Upon conviction and sentencing of the defendant, the court shall enter a civil judgment
167 for complete restitution as provided in Section 76-3-201 and identify the Reparations Office as the
168 assignee of the assigned portion of the judgment.
169 (5) If the notice of assignment is filed after sentencing, the court shall modify the civil
170 judgment for restitution to identify the Reparations Office as the assignee of the assigned portion
171 of the judgment.
172 Section 3. Section 63-25a-404 is amended to read:
173 63-25a-404. Crime Victims' Reparations Board -- Members.
174 (1) (a) A Crime Victims' Reparations Board is created, consisting of seven members
175 appointed by the governor with the advice and consent of the Senate.
176 (b) The membership of the board shall consist of:
177 (i) a member of the bar of this state;
178 (ii) a victim of criminally injurious conduct;
179 (iii) a licensed physician;
180 (iv) a representative of law enforcement;
181 (v) a mental health care provider; and
182 (vi) two other private citizens.
183 (c) The governor may appoint a chair of the board who shall serve for a period of time
184 prescribed by the governor, not to exceed the length of the chair's term. The board may elect a vice
185 chair to serve in the absence of the chair.
186 (d) The board may hear appeals from administrative decisions as provided in rules adopted
187 pursuant Section 63-25a-415 .
188 (2) (a) Except as required by Subsection (2)(b), as terms of current board members expire,
189 the governor shall appoint each new member or reappointed member to a four-year term.
190 (b) Notwithstanding the requirements of Subsection (2)(a), the governor shall, at the time
191 of appointment or reappointment, adjust the length of terms to ensure that the terms of board
192 members are staggered so that approximately half of the board is appointed every two years.
193 (c) A member may be reappointed to one successive term.
194 (3) (a) When a vacancy occurs in the membership for any reason, the replacement shall
195 be appointed for the unexpired term.
196 (b) A member resigning from the board shall serve until his successor is appointed and
197 qualified.
198 (4) (a) (i) Members who are not government employees shall receive no compensation or
199 benefits for their services, but may receive per diem and expenses incurred in the performance of
200 the member's official duties at the rates established by the Division of Finance under Sections
201 63A-3-106 and 63A-3-107 .
202 (ii) Members may decline to receive per diem and expenses for their service.
203 (b) (i) State government officer and employee members who do not receive salary, per
204 diem, or expenses from their agency for their service may receive per diem and expenses incurred
205 in the performance of their official duties from the board at the rates established by the Division
206 of Finance under Sections 63A-3-106 and 63A-3-107 .
207 (ii) State government officer and employee members may decline to receive per diem and
208 expenses for their service.
209 (5) The board shall meet at least once quarterly but may meet more frequently as
210 necessary.
211 Section 4. Section 63-25a-406 is amended to read:
212 63-25a-406. Functions of board.
213 (1) The board shall:
214 (a) adopt a description of the organization and prescribe the general operation of the board;
215 (b) prescribe policy for the Reparations Office;
216 (c) adopt rules to implement and administer Sections 63-25a-401 through 63-25a-428
217 pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act, which may include setting
218 of ceilings on reparations, defining of terms not specifically stated in this chapter, and establishing
219 of rules governing attorney fees;
220 (d) prescribe forms for applications for reparations;
221 (e) review all awards made by the reparations staff, although the board may not reverse
222 or modify awards authorized by the reparations staff;
223 (f) render an annual report to the governor and the Legislature regarding the staff's and the
224 board's activities;
225 (g) cooperate with the director and his staff in formulating standards for the uniform
226 application of Section 63-25a-409 , taking into consideration the rates and amounts of reparation
227 payable for injuries and death under other laws of this state and the United States;
228 (h) advocate the adoption, repeal, or modification of laws or proposed legislation in the
229 interest of victims of crime; [
230 (i) [
231 Reparation Trust Fund to victims of criminally injurious conduct [
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233 (j) allocate monies available to other victim services as provided by administrative rule
234 once a sufficient reserve has been established for reparation claims.
235 (2) All rules, or other statements of policy, along with application forms specified by the
236 board, are binding upon the director, the reparations officers, and other staff.
237 Section 5. Section 63-25a-409 is amended to read:
238 63-25a-409. Grounds for eligibility.
239 In order to be eligible for a reparations award under this chapter:
240 (1) The claimant shall be:
241 (a) a victim of criminally injurious conduct;
242 (b) a dependent of a deceased victim of criminally injurious conduct; or
243 (c) a representative acting on behalf of one of the above.
244 (2) The victim shall be either a resident of Utah or the criminally injurious conduct shall
245 have occurred in Utah.
246 (3) The application shall be made in writing in a form that conforms substantially to that
247 prescribed by the board.
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257 investigative agencies.
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259 agencies in their efforts to apprehend or convict the perpetrator of the alleged offense.
260 (b) An award to a victim may be made whether any person is arrested, prosecuted, or
261 convicted of the criminally injurious conduct giving rise to the claim.
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263 Section 6. Section 63-25a-410 is amended to read:
264 63-25a-410. Ineligible persons -- Fraudulent claims -- Penalties.
265 (1) The following individuals shall not be eligible to receive an award of reparations:
266 (a) persons who do not meet all of the provisions set forth in Section 63-25a-409 ;
267 (b) the offender;
268 (c) an accomplice of the offender;
269 (d) any person whose receipt of an award would unjustly benefit the offender, accomplice,
270 or other person reasonably suspected of participating in the offense;
271 (e) the victim of a motor vehicle injury who was the owner or operator of the motor
272 vehicle and was not at the time of the injury in compliance with the state motor vehicle insurance
273 laws;
274 (f) any convicted offender serving a sentence of imprisonment for that conviction or
275 residing in any other institution which provides for the maintenance of convicted persons; and
276 (g) residents of halfway houses or any other correctional facilities and all persons who are
277 on probation or parole if the circumstances surrounding the offense of which they are victims
278 constitute a violation of their parole or probation.
279 (2) A person who knowingly submits a fraudulent claim for reparations or who knowingly
280 misrepresents material facts in making a claim, and who receives an award based on that claim,
281 is guilty of an offense, based on the following award amounts:
282 (a) for value under [
283 (b) for value equal to or greater than [
284 misdemeanor;
285 (c) for value equal to or greater than [
286 degree felony; and
287 (d) for value equal to or greater than [
288 (3) A person who submits a claim described in Subsection (2) but receives no award based
289 on that claim is guilty of a class B misdemeanor.
290 (4) The state attorney general may prosecute violations under this section or may make
291 arrangements with county attorneys for the prosecution of violations under this section when the
292 attorney general cannot conveniently prosecute.
293 (5) The state may also bring a civil action against a claimant who receives reparation
294 payments that are later found to be unjustified and who does not return to the board the unjustified
295 amount.
296 Section 7. Section 63-25a-411 is amended to read:
297 63-25a-411. Compensable losses and amounts.
298 A reparations award under this chapter [
299 (1) the reparations officer finds the claim satisfies the requirements for the award under
300 the provisions of this chapter and the rules of the board;
301 (2) funds are available in the trust fund;
302 (3) the person for whom the award of reparations is to be paid is otherwise eligible under
303 this act;
304 (4) the claim is for an allowable expense incurred by the victim, as follows:
305 (a) reasonable and necessary charges incurred for products, services, and accommodations;
306 (b) inpatient and outpatient medical treatment and physical therapy, subject to rules
307 promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act;
308 (c) mental health counseling which:
309 (i) is set forth in a mental health treatment plan which has been approved prior to any
310 payment by a reparations officer; and
311 (ii) qualifies within any further rules promulgated by the board pursuant to Title 63,
312 Chapter 46a, Utah Administrative Rulemaking Act;
313 (d) actual loss of past earnings and anticipated loss of future earnings because of a death
314 or disability resulting from the personal injury at a rate not to exceed 66-2/3% of the person's
315 weekly gross salary or wages or the maximum amount allowed under the state workers'
316 compensation statute;
317 (e) care of minor children enabling a victim or spouse of a victim, but not both of them,
318 to continue gainful employment at a rate per child per week as determined under rules established
319 by the board;
320 (f) funeral and burial expenses for death caused by the criminally injurious conduct,
321 subject to rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
322 Rulemaking Act;
323 (g) loss of support to the dependent or dependents not otherwise compensated for a
324 pecuniary loss for personal injury, for as long as the dependence would have existed had the victim
325 survived, at a rate not to exceed 66-2/3% of the person's weekly salary or wages or the maximum
326 amount allowed under the state workers' compensation statute, whichever is less;
327 (h) personal property necessary and essential to the health or safety of the victim as defined
328 by rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
329 Rulemaking Act; and
330 (i) medical examinations as defined in Subsection 63-25a-402 (19), subject to rules
331 promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
332 which may allow for exemptions from Sections 63-25a-409 , 63-25a-412 , and 63-25a-413 .
333 (5) If a Utah resident suffers injury or death as a result of criminally injurious conduct
334 inflicted in a state, territory, or country that does not provide a reciprocal crime victims'
335 compensation program, the Utah resident has the same rights under this chapter as if the injurious
336 conduct occurred in this state.
337 (6) An award of reparations shall not exceed $25,000 in the aggregate unless the victim
338 is entitled to proceeds in excess of that amount as provided in Subsection 76-3-201.2 (2).
339 However, reparations for actual medical expenses incurred as a result of homicide, attempted
340 homicide, aggravated assault, or DUI offenses, may be awarded up to $50,000 in the aggregate.
341 Section 8. Section 63-25a-412 is amended to read:
342 63-25a-412. Reparations reduction.
343 (1) Reparations otherwise payable to a claimant [
344 follows:
345 (a) the economic loss upon which the claim is based has been or could be recouped from
346 other persons, including collateral sources, and the victim was not entitled to nor receiving monies
347 prior to the criminally injurious conduct giving rise to the claim under this chapter; [
348 (b) the reparations officer considers the claim unreasonable because of the misconduct of
349 the claimant or of a victim through whom he claims[
350 (c) the victim had not used a facility or health care provider that would be covered by a
351 collateral source.
352 (2) When two or more dependents are entitled to an award as a result of a victim's death,
353 the award shall be apportioned by the reparations officer among the dependents.
354 Section 9. Section 63-25a-415 is amended to read:
355 63-25a-415. Rules for contested claims -- Exemption from Administrative Procedures
356 Act.
357 [
358 shall be [
359 (2) Crime Victims' Reparations is exempt from Title 63, Chapter 46b, Administrative
360 Procedures Act.
361 Section 10. Section 63-25a-419 is amended to read:
362 63-25a-419. Assignment of recovery -- Reimbursement.
363 (1) By accepting an award of reparations, the victim automatically assigns to the state,
364 subject to the provisions of Subsection (2), all claims against any third party to the lesser of:
365 (a) the amount paid by the state; or
366 (b) the amount recovered from the third party.
367 (2) The board, with the concurrence of the director, may reduce the state's right of
368 reimbursement if it is determined that the reduction will benefit the trust fund.
369 [
370 victim and the victim shall not impair the state's claim or the state's right of reimbursement.
371 Section 11. Section 63-25a-428 is amended to read:
372 63-25a-428. Purpose -- Not entitlement program.
373 (1) Crime Victims' Reparations is a program with the purpose to assist victims of
374 criminally injurious conduct. Reparation to a victim is limited to the monies available in the Crime
375 Victims' Reparations Trust Fund.
376 (2) This program is not an entitlement program. Awards may be limited or denied as
377 determined appropriate by the board [
378 does not create a cause of action against Crime Victims' Reparations, the state, or any of its
379 subdivisions. There is no right to judicial review over the decision whether or not to grant an
380 award.
381 (3) A cause of action based on a failure to give or receive the notice required by this
382 chapter does not accrue to any person against the state, any of its agencies or local subdivisions,
383 any of their law enforcement officers or other agents or employees, or any health care or medical
384 provider or its agents or employees. The failure does not affect or alter any requirement for filing
385 or payment of a claim.
386 Section 12. Repealer.
387 This act repeals:
388 Section 63-25a-425, No cause of action for failure to give or receive notice.
389 Section 63-25a-426, No cause of action for failure to grant an award.
390 Section 63-25a-427, No criminal defense action for failure to fully comply.
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