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HomeMy WebLinkAbout2014-02 Repealing Section 1-4-1.C of the TOV Code and Enacting a New Section 1-4-4 of the TOV Code, Concerning Restitution in Municiple CourtORDINANCE NO. 2 SERIES 2014 AN ORDINANCE REPEALING SECTION 1 -4 -1.0 OF THE VAIL TOWN CODE AND ENACTING A NEW SECTION 1-4-4 OF THE VAIL TOWN CODE, CONCERNING RESTITUTION IN MUNICIPAL COURT WHEREAS, the Town of Vail, in the County of Eagle and State of Colorado (the "Town "), is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Vail Town Charter; WHEREAS, the members of the Town Council of the Town have been duly elected and qualified; WHEREAS, pursuant to its police powers and authority as a home rule municipality to define the jurisdiction of its municipal court under Article XX, § 6(c) of the Colorado Constitution, the Town may order restitution in conjunction with misdemeanors and petty offenses; WHEREAS, the Town Council finds and declares that crime victims endure undue suffering and hardship resulting from physical injury, emotional and psychological injury and loss of property; that persons found guilty of causing such suffering and hardship should be obligated to make full restitution to those harmed by their misconduct; that restitution is a mechanism for the rehabilitation of offenders and a deterrent to future criminality; and that an effective criminal justice system requires timely restitution to victims and their families to lessen the financial burdens inflicted upon them, to compensate them for their suffering and hardship, and to preserve the individual dignity of victims; and WHEREAS, the Town Council desires to amend the Vail Town Code to ensure that restitution is properly and timely collected for victims of municipal offenses. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Subsection 1 -4 -1.0 of the Vail Town Code is hereby repealed in its entirety. Section 2. Chapter 4 of Title 1 of the Vail Town Code is hereby amended by the addition of the following new Section 1-4-4: 1-4-4: RESTITUTION: A. The purpose of this Section is to provide for and collect full restitution for victims of those municipal ordinance offenses that are under the jurisdiction of the Town's municipal court in the most expeditious manner. It is the intent of the Town Council that restitution be timely ORDINANCE NO 2 SERIES OF 2014 ordered, collected, and disbursed to victims, and this Section shall be liberally construed to accomplish such intent. B. For purposes of this Section, the following terms shall have the following meanings: CONVICTION: A guilty verdict, a plea of guilty or nolo contendere that is accepted by the municipal court, and a deferred judgment and sentence which has not been successfully completed, for any violation of this Code. PROXIMATELY CAUSED: A cause which in the natural and probable sequence produced the claimed injury and without which the claimed injury would not have been sustained. RESTITUTION: A pecuniary loss suffered by a victim and proximately caused by a defendant's conduct, including without limitation: all out of pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by law enforcement agencies, extraordinary public and private investigative costs, money advanced by a governmental agency for a service animal, adjustment expenses, overtime wages for peace officers or other government employees, operating expenses for equipment such as protective clothing, costs to remove, clean up, or remediate a place used to manufacture or attempt to manufacture a controlled substance or which contains a controlled substance or which contains chemicals; costs to store, preserve, or test evidence of a controlled substance violation; and costs incurred to sell and provide for the care of and provision for an animal disposed of under any applicable animal cruelty law. "Restitution" does not include damages for physical or mental pain and suffering, loss of consortium, loss of enjoyment of life, loss of future earnings, or punitive damages. VICTIM: A person aggrieved by the conduct of an offender, including without limitation: a person against whom a violation of this Code has been perpetrated or attempted; a person harmed by an offender's conduct in the course of a scheme, conspiracy, or pattern of criminal activity; a person, including an insurer, who has suffered losses because of a contractual relationship with a victim; a victim compensation board that has paid a victim compensation claim; and if any victim is deceased or incapacitated, the victim's spouse, parent, legal guardian, natural or adopted child, child living with the victim, sibling, grandparent, significant other, or other lawful representative. "Victim" shall not include a person who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan. Any victim under the age of eighteen (18) ORDINANCE NO 2 SERIES OF 2014 2 is considered incapacitated, unless that person is legally emancipated or the court orders otherwise. C. Every order of conviction shall include one or more of the following: 1. An order of a specific amount of restitution to be paid by the defendant; 2. An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within ninety one (91) days following the order of conviction, unless good cause is shown for extending such time period; or 3. A specific finding that no victim suffered a pecuniary loss and therefore no order for restitution is being ordered. D. All restitution shall be paid to the Town, which shall distribute the restitution to the victim(s). E. The municipal court shall base its order for restitution on information presented by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. The municipal court may not order restitution without a hearing at which the prosecution must prove the amount of the victim's loss and its causal link to the defendant's conduct by a preponderance of the evidence, and at which the defendant may contest those matters. F. An order for restitution may be increased if additional victims or additional losses not known to the judge or the prosecuting attorney at the time the restitution order was entered are later discovered and the final amount of restitution due has not been set by the court; and decreased with the consent of the prosecuting attorney and the victim(s) to whom the restitution is owed or if the defendant has otherwise compensated the victim(s) for the pecuniary losses suffered. G. If more than one defendant owes restitution to the same victim for the same loss, the restitution order shall be a joint and several obligation of the defendants. H. Any amount paid to a victim under an order of restitution shall be set off against any amount later recovered as compensatory damages by such victim in a civil proceeding. I. The municipal court shall order restitution concerning only the portion of the victim's pecuniary loss for which the victim cannot be compensated under a policy of insurance, self- insurance, an indemnity agreement, or a risk management fund. The court, in determining the ORDINANCE NO 2 SERIES OF 2014 3 restitution amount, shall consider whether the defendant or the vehicle driven by the defendant at the time of the offense was covered by: a complying policy of insurance or certificate of self- insurance as required by the laws of the state of Colorado; self- insurance; or any other insurance or indemnity agreement that would indemnify the defendant for any damages sustained by the victim. The municipal court may award a victim restitution for a deductible amount under a policy of insurance. J. A victim's confidential medical and mental health records in the possession of the prosecuting attorney shall not be provided to the defendant, but may be provided to the judge for an in camera review. To obtain an in camera review of such records, a defendant must show: That his or her request is not speculative; and 2. That an in camera review is warranted, because such records may disprove all or part of the prosecuting attorney's restitution request on the basis that the loss was not proximately caused by the defendant's conduct, or that such records are otherwise relevant to the allegations pending against the defendant. Section 3. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 4. The Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 5. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 6. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. ORDINANCE NO 2 SERIES OF 2014 4 INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 7th day of January, 2014 and a public hearing for second reading of this Ordinance set for the 21St day of January, 2014, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. l0 'N.. ' L, Andrew P. Daly, May ST: 44""' Iagel, READ AND APPROVE this 21St day of January, 2014. ST: ammy e , Ac wn Clerk '(Ow•N .0 • :r 4L `ono........•: RADO� ORDINANCE NO 2 SERIES OF 2014 5 D READING AND ORDERED PUBLISHED Andrew P. 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