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SB 1083 - Click for embedded link to PDF of document

Introduced by
Senators: Allen, Smith: Biggs, Griffin,  Klein, Melvin, Murphy; Representatives: Gowan, Proud

1 Be it enacted by the Legislature of the State of Arizona:
2 Section 1. Section 13-4315, Arizona Revised Statutes, is amended to
3 read:
4 13-4315. Allocation of forfeited property
5 A. Any property, including all interests in property, forfeited to the
6 state under this title shall be transferred as requested by the attorney for
7 the state to the seizing agency or to the agency or political subdivision
8 employing the attorney for the state, which may do any of the following:
9 1. Sell, lease, lend or transfer the property to any local or state
10 government entity or agency or political subdivision, law enforcement agency
11 or prosecutorial agency or any federal law enforcement agency which operates
12 within this state for official federal, state or political subdivision use
13 within this state, with expenses for keeping and transferring such property
14 to be paid by the recipient. Property may not be allocated for official use
15 if the fair market value of the property substantially exceeds the agency's
16 probable cost of purchasing other property equally suited for the intended
17 official use. Property that is allocated for official use may not be
18 assigned for use by any person who supervised or exercised discretion in its
19 forfeiture unless the use is approved in writing by the head of the agency.
20 2. Sell forfeited property by public or otherwise commercially
21 reasonable sale with expenses of keeping and selling the property and the
22 amount of all valid interests established by claimants paid out of the
23 proceeds of the sale with the balance paid into the anti-racketeering fund of
24 the state or of the county in which the political subdivision seizing the
25 property or prosecuting the action is located. A sale of forfeited property
26 may not be made to any employee of the seizing agency, any person who
27 participated in the forfeiture, any employee of a contractor selling the
28 property on behalf of the seizing agency or any member of the immediate
29 family of any of these employees or persons.
30 3. Destroy or use for investigative purposes any illegal or controlled
31 substances or other contraband at any time more than twenty days after
32 seizure, on written approval of the attorney for the state, preserving only
33 such material as may be necessary for evidence.
34 4. Sell, use or destroy all raw materials, products and equipment of
35 any kind used or intended for use in manufacturing, compounding or processing
36 a controlled substance.
37 5. Compromise and pay claims against property forfeited pursuant to
38 any provision of this section.
39 6. Make any other disposition of forfeited property authorized by law
40 for the disposition of property of the state, government entity, agency or
41 political subdivision.
42 B. Notwithstanding subsection A of this section or any other provision
43 of law to the contrary:
44 1. If the property forfeited is money, and a law enforcement agency
45 can specifically identify monies as being from its investigative funds or as
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1 being exchanged for property from its investigative property, the monies
2 shall be remitted to the investigative fund. If there are additional
3 forfeited monies or monies tendered on satisfaction by an interest holder
4 which cannot be specifically identified, the court shall order the monies
5 returned to each law enforcement agency that makes a showing of costs or
6 expenses which it incurred in connection with the investigation and
7 prosecution of the matter and shall order all excess monies remaining after
8 such returns deposited in the anti-racketeering fund of this state or of the
9 county in which the political subdivision seizing the monies or prosecuting
10 the action is located, established pursuant to section 13-2314.01 or
11 13-2314.03.
12 2. If the property declared forfeited is an interest in a vehicle, the
13 court shall order it forfeited to the local, state or other law enforcement
14 agency seizing the vehicle for forfeiture or to the seizing agency.
15 C. Monies in any anti-racketeering fund established pursuant to this
16 title may be used, in addition to any other lawful use, for:
17 1. The payment of any expenses necessary to seize, detain, appraise,
18 inventory, protect, maintain, preserve the availability of, advertise or sell
19 property that is subject to forfeiture and that is seized, detained or
20 forfeited pursuant to this title or of any other necessary expenses incident
21 to the seizure, detention, preservation or forfeiture of the property. The
22 payments may include payments for contract services and payments to reimburse
23 any federal, state or local agency for any expenditures made to perform the
24 functions of the seizing agency.
25 2. The payment of awards for information or assistance leading to a
26 civil or criminal proceeding under this title.
27 3. The payment of compensation from forfeited property to injured
28 persons as provided in section 13-4311, subsection N, paragraph 3.
29 D. Each attorney for the state shall submit a copy of each forfeiture
30 judgment, including each order of forfeiture, to the Arizona criminal justice
31 commission within sixty days after the forfeiture judgment becomes final or
32 after the conclusion of appellate review, if any.
33 E. NOTWITHSTANDING ANY OTHER LAW, FOR THE PURPOSES OF THIS SECTION,
34 THE ARIZONA STATE GUARD IS CONSIDERED A SEIZING AGENCY IN CASES IN WHICH THE
35 GUARD PARTICIPATES AND COOPERATES WITH STATE OR LOCAL LAW ENFORCEMENT
36 AGENCIES IN ACTIVITIES THAT RESULT IN A SEIZURE OF PROPERTY FOR FORFEITURE
37 UNDER THIS CHAPTER.
38 Sec. 2. Section 26-122, Arizona Revised Statutes, is amended to read:
39 26-122. Components of militia
40 A. The militia is divided into the national guard of Arizona, the
41 ARIZONA state guard when organized, and the unorganized militia.
42 B. The national guard IS ORGANIZED UNDER TITLES 10 AND 32, UNITED
43 STATES CODE, AND consists of commissioned officers, warrant officers,
44 enlisted personnel, organizations, staffs, corps and departments of the
45 federally recognized and regularly commissioned, warranted and enlisted
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1 militia of the state, organized and maintained pursuant to law, and all
2 members thereof honorably retired by age or disability.
3 C. The numerical strength, composition, distribution, organization,
4 arms, uniforms, equipment, training and discipline of the federally
5 recognized national guard shall be prescribed by the governor in conformity
6 with the allocation of units to the state by the department of the army and
7 the department of the air force of the United States.
8 D. The inactive national guard consists of commissioned, warranted and
9 enlisted personnel relieved from assignment to the national guard by the
10 adjutant general, or at their own request, under regulations prescribed by
11 the department of national defense of the United States, and not reassigned
12 to another component of the armed forces of the United States.
13 E. The unorganized militia consists of members of the militia not
14 members of the national guard or state guard when organized.
15 Sec. 3. Section 26-166, Arizona Revised Statutes, is amended to read:
16 26-166. Immunity of national guard and Arizona state guard
17 members on active duty; arrest; civil actions;
18 exemption from jury duty
19 A. A member of the national guard OR THE ARIZONA STATE GUARD, unless
20 charged with commission of a felony OR TREASON, shall not be arrested while
21 on active duty with the national guard OR THE ARIZONA STATE GUARD in camp,
22 maneuvers or formations, or while engaged in armory drill, or while on the
23 way to or from such duties.
24 B. In any civil action, a member of the national guard OR THE ARIZONA
25 STATE GUARD is entitled to the same immunity protection afforded public
26 employees and law enforcement for acts that occur within the scope of the
27 national guard OR ARIZONA STATE GUARD member's duties if those acts are
28 performed as a result of a direct order from a commanding officer or are
29 otherwise consistent with current standard operating procedures and
30 protocols.
31 C. A member of the national guard OR THE ARIZONA STATE GUARD while on
32 active duty shall not be liable for jury duty.
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1 Sec. 4. Section 26-168, Arizona Revised Statutes, is amended to read:
2 26-168. Absence from employment for military duty; vacation and
3 seniority rights; violation; classification
4 A. An employer shall not refuse to permit members of the national
5 guard, THE ARIZONA STATE GUARD or the United States armed forces reserves to
6 take leaves of absence from employment for the purpose of complying with
7 competent orders of the state or United States for active duty, or to attend
8 camps, maneuvers, formations or armory drills. The leaves of absence shall
9 not affect vacation rights that employees otherwise have, except that an
10 employer need not consider the period of absence as a period of work in
11 determining eligibility for vacation and the amount of vacation pay to which
12 the employee is entitled.
13 B. A member of the national guard, THE ARIZONA STATE GUARD or the
14 United States armed forces reserves shall not lose seniority or precedence
15 while absent under competent military orders. On return to employment the
16 employee shall be returned to the employee's previous position, or to a
17 higher position commensurate with the employee's ability and experience as
18 seniority or precedence would ordinarily entitle the employee.
19 C. An officer or employee of this state, or any department or
20 political subdivision of this state, who is a member of the national guard,
21 THE ARIZONA STATE GUARD or the United States armed forces reserves shall be
22 entitled to leave of absence pursuant to section 38-610 from the individual's
23 duties without loss of time or efficiency rating on all days during which the
24 individual is engaged in field training as provided by this chapter, and for
25 a period during leave of absence not to exceed thirty days in any two
26 consecutive years the individual is entitled to pay. For THE purposes of
27 this section, an officer or employee shall not be charged military leave for
28 days on which the individual was not otherwise scheduled for work.
29 D. When ordered by the governor to perform training or duty under this
30 section or section 26-171, subsection C, section 26-172, 26-174 or section
31 26-175, members of the Arizona national guard OR THE ARIZONA STATE GUARD
32 shall have the protections afforded to persons on federal active duty by the
33 soldiers and sailors civil relief act of 1940 (54 Stat. 1178; 50 United
34 States Code App. sections 501 through 548 and 560 through 591) and by the
35 uniformed services employment and reemployment rights act of 1994 (108 Stat.
36 3149; 38 United States Code sections 4301 through 4333).
37 E. A person violating any provision of subsection A or B of this
38 section is guilty of a class 1 misdemeanor. The county attorney shall
39 prosecute violations of this section in superior court.
40 Sec. 5. Section 26-174, Arizona Revised Statutes, is amended to read:
41 26-174. Arizona state guard; appropriation
42 A. If the national guard of Arizona or a major portion thereof is
43 called into active federal service, or if the national guard or a major
44 portion thereof is alerted for federal service or for any other reason the
45 governor considers to be necessary, the governor may establish an armed force
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1 for the safety and protection of the lives and property of the citizens of
2 the state which shall be known as the Arizona state guard.
3 A. AN ARMED FORCE, KNOWN AS THE ARIZONA STATE GUARD, IS ESTABLISHED
4 FOR THE PURPOSE OF SECURING THE SAFETY AND PROTECTION OF THE LIVES AND
5 PROPERTY OF THE CITIZENS OF THIS STATE. THE INTENT OF THE ARIZONA STATE
6 GUARD IS TO PROVIDE A MISSION-READY VOLUNTEER MILITARY FORCE FOR USE BY THIS
7 STATE IN HOMELAND SECURITY AND COMMUNITY SERVICE ACTIVITIES AS A SUPPLEMENT
8 TO THE NATIONAL GUARD OF ARIZONA AND STATE AND LOCAL LAW ENFORCEMENT
9 AGENCIES. THE ARIZONA STATE GUARD EXISTS AS PART OF THE MILITIA UNDER
10 ARTICLE XVI, SECTION 2, CONSTITUTION OF ARIZONA, AND A DEFENSE FORCE UNDER 32
11 UNITED STATES CODE SECTION 109.
12 B. THE MISSION OF THE STATE GUARD IS:
13 1. TO SUPPORT THIS STATE IN SECURING THE BORDER WITH MEXICO AND
14 SUPPLEMENT THE EFFORTS OF LAW ENFORCEMENT AND STATE AGENCIES.
15 2. AUGMENT THE NATIONAL GUARD.
16 3. SUPPORT COUNTY AND MUNICIPAL LEADERS IN COMBATING INTERNATIONAL
17 CRIMINAL ACTIVITY.
18 4. RESPOND TO NATURAL AND MANMADE DISASTERS.
19 5. SEARCH AND RESCUE EFFORTS.
20 6. SUPPORT COMMUNITY ACTIVITIES.
21 7. OTHER MISSIONS DIRECTED BY THE GOVERNOR.
22 B. C. The Arizona state guard shall insofar as practicable be IS
23 governed by and subject to the laws of the state PROVISIONS OF THIS TITLE
24 pertaining to the ARIZONA national guard. The governor LEGISLATURE, WITH THE
25 GOVERNOR'S APPROVAL, shall issue or cause to be issued rules to govern
26 administration and organization of the ARIZONA state guard.
27 C. Appropriations made to the national guard shall be deemed
28 appropriated to both the national guard and the Arizona state guard, if and
29 when the latter organization is established, and any funds that are
30 unexpended from appropriations to the national guard may be used for
31 establishment and maintenance of the Arizona state guard.
32 D. THE SUM OF ONE MILLION FOUR HUNDRED THOUSAND DOLLARS IS
33 APPROPRIATED FROM THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT
34 MISSION BORDER SECURITY AND LAW ENFORCEMENT SUBACCOUNT ESTABLISHED BY SECTION
35 41-1724 EACH FISCAL YEAR TO THE ARIZONA STATE GUARD FOR ITS TRAINING,
36 OPERATIONS AND MAINTENANCE COSTS. THE LEGISLATURE MAY APPROPRIATE ADDITIONAL
37 AMOUNTS IF NECESSARY. THE ARIZONA STATE GUARD MAY ALSO ACCEPT GIFTS, GRANTS
38 AND DONATIONS, INCLUDING FROM NONPROFIT CHARITABLE ORGANIZATIONS AND
39 FOUNDATIONS THAT QUALIFY UNDER SECTION 501(c)(3) OR 501(c)(4) OF THE UNITED
40 STATES INTERNAL REVENUE CODE. THE ARIZONA STATE GUARD SHALL SUBMIT AN ANNUAL
41 BUDGET TO THE LEGISLATURE.
42 E. PURSUANT TO SECTION 38-211, THE GOVERNOR SHALL APPOINT AND
43 COMMISSION A COMMANDER OF THE ARIZONA STATE GUARD BASED ON THE APPLICANT'S
44 BACKGROUND, AGE, EXPERIENCE, EDUCATION, ADVANCEMENT IN THE ARMED FORCES OF
45 THE UNITED STATES AND WILLINGNESS TO SERVE. THE COMMANDER MAY APPOINT
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1 J. THE COMMANDER SHALL SUBMIT THE FOLLOWING REPORTS TO THE PRESIDENT
2 OF THE SENATE, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, THE GOVERNOR AND
3 THE ADJUTANT GENERAL:
4 1. ON JANUARY 1 OF EACH YEAR AN ANNUAL REPORT INCLUDING THE CURRENT
5 READINESS OF THE ARIZONA STATE GUARD, CRITICAL FACTORS AFFECTING THE ASSIGNED
6 MISSION AND A PROPOSED OPERATING BUDGET FOR THE NEXT FISCAL YEAR.
7 2. ON REACHING MISSION CAPABILITY STATUS, A MONTHLY READINESS REPORT
8 ON THE CAPABILITY OF THE FORCE TO CONDUCT ITS PRIMARY AND SECONDARY MISSIONS.
9 K. THE COMMANDER OF THE ARIZONA STATE GUARD SHALL MAINTAIN AND
10 PRESERVE THE INDIVIDUAL, UNIT AND ORGANIZATION RECORDS OF THE ARIZONA STATE
11 GUARD.
12 Sec. 6. Title 26, chapter 1, article 3, Arizona Revised Statutes, is
13 amended by adding sections 26-174.01, 26-174.02 and 26-174.03, to read:
14 26-174.01. Arizona state guard; recruitment of volunteers
15 A. THE COMMANDER OF THE ARIZONA STATE GUARD SHALL PROVIDE FOR THE
16 RECRUITMENT OF VOLUNTEERS FROM THROUGHOUT THIS STATE.
17 B. A PERSON SHALL NOT BE COMMISSIONED OR ENLISTED IN THE ARIZONA STATE
18 GUARD:
19 1. UNLESS THE PERSON IS A CITIZEN, OR A LEGAL RESIDENT WHO HAS
20 DECLARED THE INTENTION TO BECOME A CITIZEN, OF THE UNITED STATES.
21 2. IF THE PERSON HAS BEEN EXPELLED OR DISHONORABLY DISCHARGED FROM ANY
22 MILITARY OR NAVAL FORCE OF THE UNITED STATES, THIS STATE OR ANOTHER STATE.
23 C. AT THE TIME OF COMMISSION OR ENLISTMENT, EACH MEMBER JOINING THE
24 ARIZONA STATE GUARD SHALL TAKE AND SUBSCRIBE THE FOLLOWING OATH, IN ADDITION
25 TO THE OATH REQUIRED BY LAW OF OFFICERS:
26 I DO SOLEMNLY SWEAR THAT I WILL WELL AND FAITHFULLY PERFORM MY
27 DUTIES AS A MEMBER OF THE ARIZONA STATE GUARD TO THE BEST OF MY
28 ABILITY. I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE STATE OF
29 ARIZONA. I WILL SERVE THE STATE OF ARIZONA HONESTLY AND
30 FAITHFULLY AGAINST ALL ENEMIES. I WILL OBEY THE ORDERS OF THE
31 GOVERNOR AND THE OFFICERS PLACED OVER ME, ACCORDING TO LAW, SO
32 HELP ME GOD.
33 D. COMMISSION OR ENLISTMENT IN THE ARIZONA STATE GUARD DOES NOT EXEMPT
34 A PERSON FROM SERVICE IN THE UNIFORMED SERVICE OF THE UNITED STATES UNDER
35 FEDERAL LAW.
36 26-174.02. Arizona state guard; discipline and order
37 A. THE COMMANDER OF THE ARIZONA STATE GUARD SHALL:
38 1. ADOPT AND IMPLEMENT HIGH STANDARDS FOR MAINTAINING MILITARY
39 DISCIPLINE AND ORDER.
40 2. APPLY AND USE THE UNIFORM CODE OF MILITARY JUSTICE, INQUIRIES,
41 OFFICER BOARDS AND APPROPRIATE RULES AND MANUALS TO MAINTAIN DISCIPLINE AND
42 ORDER.
43 B. THE UNIFORM CODE OF MILITARY JUSTICE (10 UNITED STATES CODE SECTION
44 801 ET SEQ.) AND THE REGULATIONS ADOPTED UNDER THE UNIFORM CODE AND THE
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1 MANUAL FOR COURTS-MARTIAL OF THE UNITED STATES (EXECUTIVE ORDER 12473 OF
2 APRIL 13, 1984) ARE ADOPTED FOR APPLICATION TO THE ARIZONA STATE GUARD.
3 26-174.03. Arizona state guard; assets and financial support
4 A. SUBJECT TO APPROPRIATION, EACH MEMBER OF THE ARIZONA STATE GUARD
5 SHALL BE COMPENSATED NOT MORE THAN:
6 1. ONE HUNDRED DOLLARS PER DAY OF SERVICE UNDER COMPETENT ORDERS OF
7 ACTIVATION OR IN ATTENDING NOT MORE THAN FIVE DAYS OF TRAINING PER YEAR.
8 2. FIFTY DOLLARS FOR NOT MORE THAN ONE DAY OF TRAINING PER MONTH.
9 B. FULL-TIME ARIZONA STATE GUARD PERSONNEL ARE ELIGIBLE FOR
10 COMPENSATION ACCORDING TO THE PAY GRADE AND TABLES ESTABLISHED BY THE
11 ADJUTANT GENERAL AND GENERAL STAFF FOR THE ARIZONA NATIONAL GUARD PURSUANT TO
12 SECTION 26-115.
13 C. WITH THE GOVERNOR'S APPROVAL, THE COMMANDER OF THE ARIZONA STATE
14 GUARD MAY PROCURE A POLICY OF GROUP INSURANCE FOR MEMBERS OF THE ARIZONA
15 STATE GUARD COVERING AND INSURING MEMBERS AGAINST INJURY WHILE SERVING UNDER
16 COMPETENT ORDERS OF ACTIVATION OR ATTENDING TRAINING. THE ESTATE OF A MEMBER
17 WHO DIES AS A RESULT OF INJURY OR DISABILITY INCURRED WHILE PERFORMING
18 OFFICIAL DUTIES UNDER ORDERS OF ACTIVATION OR TRAINING IS ENTITLED TO A DEATH
19 BENEFIT CALCULATED PURSUANT TO RULES ADOPTED BY THE COMMANDER.
20 D. THE ARIZONA STATE GUARD IS EXEMPT FROM THE REQUIREMENTS OF TITLE
21 41, CHAPTER 23. FOR THE USE OF THE ARIZONA STATE GUARD:
22 1. THE GOVERNOR MAY REQUISITION FROM THE UNITED STATES SECRETARY OF
23 DEFENSE SPARE ARMS, AMMUNITION, CLOTHING AND EQUIPMENT AND, WHEN AUTHORIZED,
24 SURPLUS MILITARY ASSETS.
25 2. THE GOVERNOR MAY MAKE AVAILABLE NATIONAL GUARD ARMORIES, EQUIPMENT
26 AND OTHER STATE PREMISES AND PROPERTY.
27 3. SCHOOL DISTRICTS MAY ALLOW THE USE OF SCHOOL BUILDINGS AND GROUNDS
28 ON TERMS PRESCRIBED BY THE COMMANDER OF THE ARIZONA STATE GUARD.
29 E. IN ADDITION TO LEGISLATIVE APPROPRIATION, THE ARIZONA STATE GUARD
30 MAY ACCEPT UNCONDITIONAL GIFTS, GRANTS OR DEVISES FROM ANY PUBLIC OR PRIVATE
31 SOURCE INCLUDING STATE AND LOCAL GOVERNMENT ENTITIES, AGENCIES,
32 INSTRUMENTALITIES, POLITICAL SUBDIVISIONS AND BUDGET UNITS.
33 Sec. 7. Section 26-1001, Arizona Revised Statutes, is amended to read:
34 26-1001. Definitions
35 In this chapter, unless the context otherwise requires:
36 1. "Accuser" means a person who signs and swears to charges, a person
37 who directs that charges nominally be signed and sworn to by another and any
38 other person who has an interest other than an official interest in the
39 prosecution of the accused.
40 2. "Apprehend" or "apprehension" means taking a person into custody.
41 3. "Arrest" means the restraint of a person by an order, not imposed
42 as a punishment for an offense, directing the person to remain within certain
43 specified limits.
44 4. "Candidate" means a candidate of the Arizona military academy.
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1 5. "Code" means the Arizona code of military justice as set forth in
2 this chapter.
3 6. "Commanding officer" means only commissioned officers.
4 7. "Confinement" means the physical restraint of a person.
5 8. "Judge advocate" means an officer of the judge advocate general's
6 corps of the United States army or the army national guard of the United
7 States or an officer of the United States air force or the air national guard
8 of the United States who is designated as a judge advocate.
9 9. "Military" means any or all of the armed forces of this state, the
10 United States or any other state.
11 10. "Military judge" means an official of a general or special
12 court-martial detailed in accordance with section 26-1026.
13 11. "National guard" means the national guard of Arizona and the
14 ARIZONA state guard when organized.
15 12. "Officer in charge" means a member of the National guard designated
16 as the officer in charge by an appropriate authority.
17 13. "Record", if used in connection with the proceedings of a
18 court-martial, means an official written transcript, written summary or other
19 writing relating to the proceedings or an official audiotape, videotape or
20 similar material from which sound, or sound and visual images, depicting the
21 proceedings may be reproduced.
22 14. "State judge advocate" means the commissioned officer responsible
23 for supervising the administration of military justice in the national guard.
24 15. "Superior commissioned officer" means a commissioned officer
25 superior in rank or command.
26 Sec. 8. Appropriation; purpose; exemption
27 A. In addition to the monies appropriated pursuant to section 26-174,
28 Arizona Revised Statutes, the sum of $500,000 is appropriated from the state
29 general fund in fiscal year 2011-2012 to the Arizona state guard for
30 training, operations and maintenance costs.
31 B. The appropriation made in subsection A of this section is exempt
32 from the provisions of section 35-190, Arizona Revised Statutes, relating to
33 lapsing of appropriations.
34 Sec. 9. Emergency
35 This act is an emergency measure that is necessary to preserve the
36 public peace, health or safety and is operative immediately as provided by
37 law.