TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO COLLECTION OF RESTITUTION FOR CRIME VICTIMS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§706- Income withholding for payment of restitution. (1) Whenever a judgment or order is entered establishing, modifying, or enforcing restitution, there shall concurrently be issued an order that shall operate as an assignment to the clerk of the court where the order is entered, of such amounts at such times as may be specified in the judgment or order, but no less than $50 per month, from the defendant's income due or to become due in the future from the defendant's employer or successor employers. A copy of the income withholding order shall be filed in the office of the clerk of the circuit court in the circuit where the order was issued.
(2) The income withholding order issued pursuant to subsection (1) shall be effective immediately after service upon an employer of a copy of the order, which service may be effected by regular mail, by personal delivery, or by transmission through electronic means. Thereafter, for each pay period, the employer shall withhold from the income due that is not required to be withheld by any other provision of federal or state law to the defendant from the employer and transmit to the clerk of the court where the order is entered, as much as may remain payable for the pay period up to the amount specified in the order. The employer shall immediately inform the court of any change that would affect the income withholding order.
(3) Compliance by an employer with the income withholding order issued pursuant to subsection (1) shall operate as a discharge of the employer's liability to the defendant for that portion of the defendant's earnings withheld and transmitted to the clerk of the court where the order is issued, whether or not the employer has withheld the correct amount. For each payment made pursuant to an income withholding order, the employer may deduct and retain as an administrative fee an additional amount of $2 from the income owed to the defendant. The total amount withheld from the defendant's income, including the administrative fee, may not be in excess of the maximum amounts permitted under section 303(b) of the Consumer Credit Protection Act (15 U.S.C. §1673(b)). Any income withholding order made pursuant to this section shall have priority as against any garnishment, attachment, execution, or other income withholding order, or any other order, except for any order made pursuant to chapter 576E, which shall have first priority. Any income withholding made pursuant to this section shall not be subject to the exemptions or restrictions contained in part III of chapter 651 and in chapters 652 and 653.
An employer who fails to comply with an income withholding order under this section shall be liable to the obligee for the full amount of all sums ordered to be withheld and transmitted. An employer receiving an income withholding order shall transmit amounts withheld to the clerk of the court within five business days after the defendant is paid. The employer shall begin withholding no later than the first pay period commencing within seven business days following the date a copy of the order is delivered, mailed, or transmitted to the employer. As used in this subsection, the term "business day" means a day on which the employer's office is open for regular business. An employer who complies with an income withholding order that is regular on its face shall not be subject to civil liability to any person, entity, or agency for conduct in compliance with the order.
An employer who is required to withhold amounts from the income of more than one employee may remit to the court a sum total of all such amounts in one check with a listing of the amounts applicable to each employee. Within two business days after receipt of the amounts withheld by the employer, the clerk of the court shall disburse the amounts to the obligee.
(4) An income withholding order shall be terminated when appropriate by a court order. The court shall promptly refund any amount withheld in error to the defendant.
(5) It shall be unlawful for any employer to refuse to hire a prospective employee, discharge an employee, or take any other disciplinary action against an employee based in whole or in part upon an order or notice to withhold income pursuant to this section. Any employer violating this section shall be guilty of a misdemeanor and shall be punished under section 710-1077(1)(g).
(6) Notwithstanding any other provision of law, for the purposes of this section, the term "income" shall include, without limitation, salaries, wages, earnings, workers' compensation, commissions, fees, bonuses, independent contractor income, and any other entitlement to money, including moneys payable as a pension or as an annuity, retirement, disability, death, or other benefit, or from the State or a political subdivision thereof, or from any retirement, disability, or annuity system established by any of them under law.
(7) If there is more than one restitution judgment or order, the amounts withheld from the income of a defendant shall be allocated among the restitution judgments or orders. If concurrent assignment orders would cause the amounts withheld from the defendant's income to exceed applicable wage withholding limitations, the amount withheld shall be allocated so that in no case shall the allocation result in a withholding for one of the restitution obligations not being implemented.
(8) If a defendant changes employer when an income withholding order is in effect, the defendant shall notify and provide the clerk of the court with the new employer's contact information within five business days of the change. The clerk of the court shall notify the defendant's new employer of the defendant's obligation in accordance with subsections (2) to (6). The new employer shall be bound by the income withholding order until further court order.
(9) For purposes of this section, "employer" means any individual; partnership; association; joint stock company; trust; corporation; personal representative of the estate of a deceased individual; or receiver, trustee, or successor of any of the same, employing any individual, including the United States government, State, and any political subdivision thereof, who is or shall become obligated for payment of income."
SECTION 2. Section 231-52, Hawaii Revised Statutes, is amended by amending the definition of "debt" to read as follows:
(1) Any delinquency in periodic court-ordered or administrative-ordered payments for child support pursuant to section 576D-1, in an amount equal to or exceeding the sum of payments which would become due over a one-month period;
(2) Any liquidated sum exceeding $25 which is due and owing any claimant agency, regardless of whether there is an outstanding judgment for that sum, and whether the sum has accrued through contract, subrogation, tort, operation of law, or judicial or administrative judgment or order;
(3) Any defaulted education loan note held by the United Student Aid Funds, Inc. incurred under the federal Higher Education Act of 1965 (Public Law 89-329, 79 Stat. 1219), as amended;
(4) Any federal income taxes due and owing to the
United States Treasurer; [
(5) Any medicaid overpayment under section 346-59.6[
(6) Any unpaid court-ordered restitution pursuant to section 706-647."
SECTION 3. Section 706-645, Hawaii Revised Statutes, is amended to read as follows:
"§706-645 Revocation of fine [
restitution]. (1) A defendant who has been sentenced to pay a fine [ or
restitution] and who is not in contumacious default in the payment thereof
may at any time petition the court which sentenced the defendant for a
revocation of the fine [ or restitution] or of any unpaid portion
(2) If it appears to the satisfaction of the
court that the circumstances which warranted the imposition of the fine [
restitution] have changed, or that it would otherwise be unjust to require
payment, the court may revoke the fine [ or restitution] or the unpaid
portion thereof in whole or in part. Prior to revocation, the court shall
afford the prosecuting attorney an opportunity to be heard."
SECTION 4. Section 706-646, Hawaii Revised Statutes, is amended to read as follows:
"§706-646 Victim restitution. (1) As used in this section, "victim" includes any of the following:
(a) The direct victim of a crime including a business entity, trust, or governmental entity;
(b) If the victim dies as a result of the crime, a surviving relative of the victim as defined in chapter 351; or
(c) A governmental entity that has reimbursed the victim for losses arising as a result of the crime or paid for medical care provided to the victim as a result of the crime.
(2) The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant's offense when requested by the victim. The court shall order restitution to be paid to the crime victim compensation commission in the event that the victim has been given an award for compensation under chapter 351. If the court orders payment of a fine in addition to restitution or a compensation fee, or both, the payment of restitution and compensation fee shall have priority over the payment of the fine, and payment of restitution shall have priority over payment of a compensation fee.
(3) In ordering restitution, the court shall not consider the defendant's financial ability to make restitution in determining the amount of restitution to order. The court, however, shall consider the defendant's financial ability to make restitution for the purpose of establishing the time and manner of payment. The court shall specify the time and manner in which restitution is to be paid. Restitution shall be a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to:
(a) Full value of stolen or damaged property, as determined by replacement costs of like property, or the actual or estimated cost of repair, if repair is possible;
(b) Medical expenses; and
(c) Funeral and burial expenses incurred as a result of the crime.
(4) All money deposited by way of bail or bond, in any criminal proceeding before any court, that has not been declared forfeited shall be applied toward payment of any restitution, fines, or fees ordered by the court in the same case, consistent with the priorities stated in subsection (2).
(4)] (5) The restitution
ordered shall not affect the right of a victim to recover under section 351-33
or in any manner provided by law; provided that any amount of restitution
actually recovered by the victim under this section shall be deducted from any
award under section 351-33."
SECTION 5. Section 806-73, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) All adult probation records shall be confidential and shall not be deemed to be public records. As used in this section, the term "records" includes but is not limited to all records made by any adult probation officer in the course of performing the probation officer's official duties. The records, or the content of the records, shall be divulged only as follows:
(1) A copy of any adult probation case record or of a portion of it, or the case record itself, upon request, may be provided to:
(A) An adult probation officer, court officer, social worker of a Hawaii state adult probation unit, or a family court officer who is preparing a report for the courts; or
(B) A state or federal criminal justice agency, or state or federal court program that:
(i) Is providing supervision of a defendant or offender convicted and sentenced by the courts of Hawaii; or
(ii) Is responsible for the preparation of a report for a court;
(2) The residence address, work address, home telephone number, or work telephone number of a current or former defendant shall be provided only to:
(A) A law enforcement officer as defined in section 710-1000(13) to locate the probationer for the purpose of serving a summons or bench warrant in a civil, criminal, or deportation hearing, or for the purpose of a criminal investigation; or
(B) A collection agency or licensed attorney contracted by the judiciary to collect any delinquent court-ordered penalties, fines, restitution, sanctions, and court costs pursuant to section 601-17.5;
(3) A copy of a presentence report or investigative report shall be provided only to:
(A) The persons or entities named in section 706-604;
(B) The Hawaii paroling authority;
(C) Any psychiatrist, psychologist, or other treatment practitioner who is treating the defendant pursuant to a court order or parole order for that treatment;
(D) The intake service centers;
(E) In accordance with applicable law, persons or entities doing research; and
(F) Any Hawaii state adult probation officer or adult probation officer of another state or federal jurisdiction who:
(i) Is engaged in the supervision of a defendant or offender convicted and sentenced in the courts of Hawaii; or
(ii) Is engaged in the preparation of a report for a court regarding a defendant or offender convicted and sentenced in the courts of Hawaii;
(4) Access to adult probation records by a victim, as
defined in section 706-646 to enforce an order filed pursuant to section
706-647, shall be limited to the name and contact information of the
defendant's adult probation officer[
;], the compliance record of the
defendant with court-ordered payments, the amounts paid by the defendant, the
dates of the payments made by the defendant, the payee of payments made by the
defendant, and the balance unpaid;
(5) Upon written request, the victim, or the parent or guardian of a minor victim or incapacitated victim, of a defendant who has been placed on probation for an offense under section 580-10(d)(1), 586-4(e), 586-11(a), or 709-906 may be notified by the defendant's probation officer when the probation officer has any information relating to the safety and welfare of the victim;
(6) Notwithstanding paragraph (3) and upon notice to the defendant, records and information relating to the defendant's risk assessment and need for treatment services; information related to the defendant's past treatment and assessments, with the prior written consent of the defendant for information from a treatment service provider; provided that for any substance abuse records such release shall be subject to Title 42 Code of Federal Regulations Part 2, relating to the confidentiality of alcohol and drug abuse patient records; and information that has therapeutic or rehabilitative benefit, may be provided to:
(A) A case management, assessment, or treatment service provider assigned by adult probation to service the defendant; provided that the information shall be given only upon the screening for admission, acceptance, or admittance of the defendant into a program;
(B) Correctional case manager, correctional unit manager, and parole officers involved with the defendant's treatment or supervision; and
(C) In accordance with applicable law, persons or entities doing research;
(7) Probation drug test results may be released with prior written consent of a defendant to the defendant's treating physician when test results indicate substance use which may be compromising the defendant's medical care or treatment;
(8) Any person, agency, or entity receiving records, or contents of records, pursuant to this subsection shall be subject to the same restrictions on disclosure of the records as Hawaii state adult probation offices; and
(9) Any person who uses the information covered by this subsection for purposes inconsistent with the intent of this subsection or outside of the scope of the person's official duties shall be fined no more than $500."
SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2013-2014 and the same sum or so much thereof as may be necessary for fiscal year 2014-2015 for the purpose of enhancing restitution collection pursuant to this Act and the hiring of any necessary staff to implement this Act.
The sums appropriated shall be expended by the judiciary for the purposes of this Act.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect on July 1, 2013.
Collection of Restitution for Crime Victims; Appropriation
Creates standards and procedures for income-withholding, for purposes of enforcing restitution orders. Amends the definition of "debt" relating to the recovery of money owed to the State to include court-ordered restitution subject to civil enforcement. Removes court's authority to revoke restitution once ordered. Extends victims' access to adult probation records, to include access to payment compliance records, for purposes of enforcing restitution orders. Requires that any bail posted by a defendant be applied toward payment of any court-ordered restitution in the same case. Makes an unspecified appropriation to the judiciary for the purpose of enhancing restitution collection. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.