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REFERENCE TITLE: unlawful reentry; offense; bail |
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State of Arizona Senate Forty-ninth Legislature Second Regular Session 2010
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SB 1394 |
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Introduced by Senators Pearce R: Gray C, Huppenthal, Paton
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AN ACT
amending title 13, chapter 23, Arizona Revised Statutes, by adding section 13-2323; amending sections 13-3906 and 13-3961, Arizona Revised Statutes; Relating to Unlawful reentry of aliens.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 13, chapter 23, Arizona Revised Statutes, is amended by adding section 13-2323, to read:
13-2323. Unlawful reentry by illegal aliens; classification
A. A person is guilty of unlawful reentry if the person is present on any public or private land in this state, is In violation of 8 United States Code section 1304(e) or 1306(a), Has previously been deported or removed from the United States, has agreed, in writing, to voluntarily deport the United States or has departed the United States while an order of exclusion, deportation or removal was outstanding and either of the following applies:
1. The person has previously been convicted of any misdemeanor or petty offense in this state or any act in another jurisdiction in the United States that if committed in this state would be a misdemeanor or petty offense.
2. The person has previously been convicted of any felony offense in this state or any act in another jurisdiction in the United States that if committed in this state would be a felony offense.
B. In the enforcement of this section, the final determination of a person's immigration status shall be determined by either:
1. A law enforcement officer who is authorized to verify or ascertain a person's immigration status.
2. A law enforcement officer or agency communicating with the United States immigration and customs enforcement or the United States border protection pursuant to 8 United States Code section 1373(c).
C. This section does not apply to a person who maintains authorization from the federal government to remain in the United States.
D. A violation of this section is a class 4 felony.
E. If the person is convicted of a violation of subsection a, paragraph 2 of this section, the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served or commuted. A sentence imposed pursuant to this subsection shall run consecutively to any other sentence imposed on the person at any time. The presumptive term may be aggravated or mitigated within the range under this section pursuant to section 13‑701, subsections C, D and E. The additional sentence imposed pursuant to this subsection is in addition to any enhanced sentence that may be applicable. The term is as follows:
Minimum Presumptive Maximum
10 years 12 years 15 years
Sec. 2. Section 13-3906, Arizona Revised Statutes, is amended to read:
13-3906. Processing arrestees; citizenship determination; notice
A. Within twenty-four hours after a person is brought to a law enforcement agency for incarceration, the law enforcement agency shall inquire of the person and determine that person's country of citizenship. If the person is not a United States citizen, the law enforcement agency shall:
1. Notify the person's country of citizenship of the person's detention if the person does not waive notification or if the person's country of citizenship requires notification regardless of the person's waiver of notification.
2. Document the notification to the person's country of citizenship and any waiver of notification.
3. Transmit any information obtained pursuant to this section to the court and the prosecuting agency for the purpose of making a determination pursuant to section 13‑3961, subsection A, paragraph 5 or 6 or section 13‑3967, subsection B, paragraph 11 or for any other lawful purpose.
B. The failure or inability of a law enforcement agency to provide the notice required by this section does not:
1. Affect the admissibility of any statements, the voluntariness of a guilty plea or the validity of a conviction.
2. Afford a defendant any rights in any proceeding related to deportation, exclusion or denial of naturalization.
Sec. 3. Section 13-3961, Arizona Revised Statutes, is amended to read:
13-3961. Offenses not bailable; purpose; preconviction; exceptions
A. A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following:
1. A capital offense.
2. Sexual assault.
3. Sexual conduct with a minor who is under fifteen years of age.
4. Molestation of a child who is under fifteen years of age.
5. A serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally. For the purposes of this paragraph:
(a) The court shall consider all of the following in making a determination that a person has entered or remained in the United States illegally:
(i) Whether a hold has been placed on the arrested person by the United States immigration and customs enforcement.
(ii) Any indication by a law enforcement agency that the person is in the United States illegally.
(iii) Whether an admission by the arrested person has been obtained by the court or a law enforcement agency that the person has entered or remained in the United States illegally.
(iv) Any information received from a law enforcement agency pursuant to section 13‑3906.
(v) Any evidence that the person has recently entered or remained in the United States illegally.
(vi) Any other relevant information that is obtained by the court or that is presented to the court by a party or any other person.
(b) "Serious felony offense" means any class 1, 2, 3 or 4 felony or any violation of section 28‑1383.
6. Any offense if the person Has previously been deported or removed from the United States or has departed the United States while an order of exclusion, deportation or removal was outstanding.
B. The purposes of bail and any conditions of release that are set by a judicial officer include:
1. Assuring the appearance of the accused.
2. Protecting against the intimidation of witnesses.
3. Protecting the safety of the victim, any other person or the community.
C. The initial determination of whether an offense is bailable pursuant to subsection A of this section shall be made by the magistrate or judicial officer at the time of the person's initial appearance.
D. Except as provided in subsection A of this section, a person who is in custody shall not be admitted to bail if the person is charged with a felony offense and the state certifies by motion and the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community and that the proof is evident or the presumption great that the person committed the offense for which the person is charged. For the purposes of this subsection, "violent offense" means either of the following:
1. A dangerous crime against children.
2. Terrorism.
E. On oral motion of the state, the court shall order the hearing required by subsection D of this section at or within twenty‑four hours of the initial appearance unless the person who is subject to detention or the state moves for a continuance. A continuance that is granted on the motion of the person shall not exceed five calendar days unless there are extenuating circumstances. A continuance on the motion of the state shall be granted on good cause shown and shall not exceed twenty‑four hours. The prosecutor shall provide reasonable notice and an opportunity for victims and witnesses to be present and heard at any hearing. The person may be detained pending the hearing. The person is entitled to representation by counsel and is entitled to present information by proffer or otherwise, to testify and to present witnesses in the person's own behalf. Testimony of the person charged that is given during the hearing shall not be admissible on the issue of guilt in any subsequent judicial proceeding, except as it might relate to the compliance with or violation of any condition of release subsequently imposed or the imposition of appropriate sentence or in perjury proceedings, or for the purposes of impeachment. The case of the person shall be placed on an expedited calendar and, consistent with the sound administration of justice, the person's trial shall be given priority. The person may be admitted to bail in accordance with the Arizona rules of criminal procedure whenever a judicial officer finds that a subsequent event has eliminated the basis for detention.
F. The finding of an indictment or the filing of an information does not add to the strength of the proof or the presumption to be drawn.
G. In a hearing pursuant to subsection C of this section, proof that the person is a criminal street gang member may give rise to the inference that the person poses a substantial danger to another person or the community and that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community.