1.1                          A bill for an act 
  1.2             relating to traffic regulations; authorizing the 
  1.3             infliction of corporal punishment on habitual DWI 
  1.4             offenders; providing criminal penalties; amending 
  1.5             Minnesota Statutes 1996, sections 169.121, subdivision 
  1.6             3a, and by adding a subdivision; 609.10; and 609.125. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  [LEGISLATIVE FINDINGS AND PURPOSE.] 
  1.9      Subdivision 1.  [FINDING.] The legislature finds that a 
  1.10  significant number of habitual violators of laws prohibiting 
  1.11  driving while under the influence of alcohol or controlled 
  1.12  substance (DWI) have not responded to the present mix of 
  1.13  sanctions and other preventive measures by driving more 
  1.14  responsibly.  The legislature further finds that the danger this 
  1.15  small class of irresponsible drivers presents to public safety, 
  1.16  including potential violation of the criminal law of vehicular 
  1.17  homicide and injury with respect to children and the innocent, 
  1.18  justifies the use of corporal punishment as a deterrent. 
  1.19     Subd. 2.  [PURPOSE AND INTENT.] (a) The purpose of 
  1.20  prescribing flogging as a sanction for habitual DWI offenders is 
  1.21  to: 
  1.22     (1) generally deter all persons who consume alcohol or 
  1.23  controlled substances from drinking to excess and operating a 
  1.24  motor vehicle; and 
  1.25     (2) particularly deter that small class of habitual DWI 
  1.26  offenders from drinking to excess and operating a motor vehicle. 
  2.1      (b) The legislature intends that the sanction of flogging 
  2.2   prescribed by section 169.121, subdivision 3a, also serves, by 
  2.3   the publicity which attends the public character of 
  2.4   administering the sanction, to educate the public about the 
  2.5   seriousness of driving a motor vehicle after drinking alcohol to 
  2.6   excess.  
  2.7      Subd. 3.  [RETRIBUTION; PUNISHMENT PHILOSOPHY NOT INCLUDED 
  2.8   IN LAW.] The legislative purpose of adding corporal punishment 
  2.9   to the sanctions for habitual DWI offenders does not include 
  2.10  retribution, revenge, or retaliation.  Therefore this act has 
  2.11  included procedural and other safeguards to ensure that the 
  2.12  administration of the sanction is proportionate to the offense 
  2.13  committed.  The legislature intends that the sanction of 
  2.14  flogging should serve the deterrent and educative purposes 
  2.15  stated in subdivision 2, chiefly symbolic and communicative 
  2.16  purposes, and to that end should not be administered in a manner 
  2.17  that involves the infliction of unnecessary or wanton pain. 
  2.18     Sec. 2.  Minnesota Statutes 1996, section 169.121, 
  2.19  subdivision 3a, is amended to read: 
  2.20     Subd. 3a.  [HABITUAL OFFENDER PENALTIES.] (a) Except as 
  2.21  otherwise provided in paragraph (b), if a person has been 
  2.22  convicted under this section, section 169.129, an ordinance in 
  2.23  conformity with either of them, or a statute or ordinance from 
  2.24  another state in conformity with either of them, and if the 
  2.25  person is then convicted of a gross misdemeanor violation of 
  2.26  this section, a violation of section 169.129, or an ordinance in 
  2.27  conformity with either of them (1) once within five years after 
  2.28  the first conviction or (2) two or more times within ten years 
  2.29  after the first conviction, the person must be sentenced 
  2.30  to mandatory public flogging under subdivision 3d, to a minimum 
  2.31  of 30 days imprisonment, at least 48 hours of which must be 
  2.32  served consecutively, or to eight hours of community work 
  2.33  service for each day less than 30 days that the person is 
  2.34  ordered to serve in jail.  Provided, that if a person is 
  2.35  convicted of violating this section, section 169.129, or an 
  2.36  ordinance in conformity with either of them two or more times 
  3.1   within five years after the first conviction, or within five 
  3.2   years after the first of two or more license revocations, as 
  3.3   defined in subdivision 3, paragraph (a), clause (2), the person 
  3.4   must be sentenced to a minimum of 30 days imprisonment, at least 
  3.5   48 hours of which must be served consecutively, and the sentence 
  3.6   may not be waived under paragraph (c) or (d).  Notwithstanding 
  3.7   section 609.135, the above sentence must be executed, unless the 
  3.8   court departs from the mandatory minimum sentence under 
  3.9   paragraph (c) or (d). 
  3.10     (b) A person must be sentenced to mandatory public flogging 
  3.11  under subdivision 3d, to a minimum of one year of incarceration, 
  3.12  at least 48 hours of which must be served consecutively, or ~~of~~ 
  3.13  to intensive probation using an electronic alcohol monitoring 
  3.14  system, or a combination thereof, if the person is convicted of 
  3.15  violating this section, section 169.129, or an ordinance in 
  3.16  conformity with either of them:  (1) within ten years of the 
  3.17  first of five, or within 15 years of the first of seven, prior 
  3.18  license revocations, as defined in subdivision 3, paragraph (a), 
  3.19  clause (2), or (2) within ten years of the first of five, or 
  3.20  within 15 years of the first of seven, prior convictions under 
  3.21  this section, section 169.129, or an ordinance in conformity 
  3.22  with either of them. 
  3.23     (c) Prior to sentencing the prosecutor may file a motion to 
  3.24  have the defendant sentenced without regard to the mandatory 
  3.25  minimum sentence established by this subdivision.  The motion 
  3.26  must be accompanied by a statement on the record of the reasons 
  3.27  for it.  When presented with the prosecutor's motion and if it 
  3.28  finds that substantial mitigating factors exist, the court shall 
  3.29  sentence the defendant without regard to the mandatory minimum 
  3.30  sentence established by this subdivision. 
  3.31     (d) The court may, on its own motion, sentence the 
  3.32  defendant without regard to the mandatory minimum sentence 
  3.33  established by this subdivision if it finds that substantial 
  3.34  mitigating factors exist and if its sentencing departure is 
  3.35  accompanied by a statement on the record of the reasons for it. 
  3.36     (e) The court may sentence the defendant without regard to 
  4.1   the mandatory minimum sentence established by this subdivision 
  4.2   if the defendant is sentenced to probation and ordered to 
  4.3   participate in a program established under section 169.1265. 
  4.4      (f) The court may not waive the mandatory public flogging 
  4.5   established by this subdivision unless health factors make such 
  4.6   a sanction inappropriate. 
  4.7      (g) When any portion of the sentence required by this 
  4.8   subdivision is not executed, the court should impose a sentence 
  4.9   that is proportional to the extent of the offender's prior 
  4.10  criminal and moving traffic violation record.  Any sentence 
  4.11  required under this subdivision must include a mandatory 
  4.12  sentence that is not subject to suspension or a stay of 
  4.13  imposition or execution, and that includes incarceration for not 
  4.14  less than 48 consecutive hours or at least 80 hours of community 
  4.15  work service. 
  4.16     Sec. 3.  Minnesota Statutes 1996, section 169.121, is 
  4.17  amended by adding a subdivision to read: 
  4.18     Subd. 3d.  [CORPORAL PUNISHMENT.] (a) The court shall order 
  4.19  that public flogging take place within an area in the judicial 
  4.20  district where members of the public are likely to be present. 
  4.21     (b) The supreme court is requested to adopt standards for 
  4.22  administration of flogging and publish a schedule of public 
  4.23  flogging that prescribes a fixed number of lashes for each 
  4.24  habitual offender required to be flogged under subdivision 3a, 
  4.25  paragraphs (a) and (b), that is not disproportionate to the 
  4.26  offense committed.  The schedule of public flogging must be 
  4.27  consistent with civilized standards and provide that flogging be 
  4.28  administered in a manner that is not prohibitively cruel. 
  4.29     (c) The supreme court in its standards for administration 
  4.30  of the flogging sanction may request state or local correctional 
  4.31  authorities or law enforcement agencies to provide staff to 
  4.32  execute the sanction.  In addition, the supreme court may 
  4.33  require the sentencing court, in its order for public flogging, 
  4.34  to authorize the presence of medical or public health personnel 
  4.35  to mitigate the consequences of any unintended injuries incident 
  4.36  to administering the sanction. 
  5.1      (d) The state court administrator shall require the courts 
  5.2   to keep records of the sanctions imposed under section 169.121, 
  5.3   subdivision 3a.  On or before January 15, 1999, the state court 
  5.4   administrator shall present the committees in the senate and 
  5.5   house of representatives dealing with criminal justice policy 
  5.6   with a report containing the flogging sanction statistics 
  5.7   required to be maintained under this paragraph and an evaluation 
  5.8   of how effective the sanction is in reducing DWI recidivism. 
  5.9      Sec. 4.  Minnesota Statutes 1996, section 609.10, is 
  5.10  amended to read: 
  5.11     609.10 [SENTENCES AVAILABLE.] 
  5.12     Upon conviction of a felony and compliance with the other 
  5.13  provisions of this chapter the court, if it imposes sentence, 
  5.14  may sentence the defendant to the extent authorized by law as 
  5.15  follows: 
  5.16     (1) to life imprisonment; ~~or~~ 
  5.17     (2) to imprisonment for a fixed term of years set by the 
  5.18  court; ~~or~~ 
  5.19     (3) to both imprisonment for a fixed term of years and 
  5.20  payment of a fine; ~~or~~ 
  5.21     (4) to payment of a fine without imprisonment or to 
  5.22  imprisonment for a fixed term of years if the fine is not paid; 
  5.23  ~~or~~ 
  5.24     (5) to payment of court-ordered restitution in addition to 
  5.25  either imprisonment or payment of a fine, or both; ~~or~~ 
  5.26     (6) to public flogging; or 
  5.27     (7) to payment of a local correctional fee as authorized 
  5.28  under section 609.102 in addition to any other sentence imposed 
  5.29  by the court. 
  5.30     As used in this section, "restitution" includes: 
  5.31     (i) payment of compensation to the victim or the victim's 
  5.32  family; and 
  5.33     (ii) if the victim is deceased or already has been fully 
  5.34  compensated, payment of money to a victim assistance program or 
  5.35  other program directed by the court. 
  5.36     In controlled substance crime cases, "restitution" also 
  6.1   includes payment of compensation to a government entity that 
  6.2   incurs loss as a direct result of the controlled substance crime.
  6.3      Sec. 5.  Minnesota Statutes 1996, section 609.125, is 
  6.4   amended to read: 
  6.5      609.125 [SENTENCE FOR MISDEMEANOR OR GROSS MISDEMEANOR.] 
  6.6      Upon conviction of a misdemeanor or gross misdemeanor the 
  6.7   court, if sentence is imposed, may, to the extent authorized by 
  6.8   law, sentence the defendant: 
  6.9      (1) to imprisonment for a definite term; ~~or~~ 
  6.10     (2) to payment of a fine, or to imprisonment for a 
  6.11  specified term if the fine is not paid; ~~or~~ 
  6.12     (3) to both imprisonment for a definite term and payment of 
  6.13  a fine; ~~or~~ 
  6.14     (4) to payment of court-ordered restitution in addition to 
  6.15  either imprisonment or payment of a fine, or both; ~~or~~ 
  6.16     (5) to public flogging; or 
  6.17     (6) to payment of a local correctional fee as authorized 
  6.18  under section 609.102 in addition to any other sentence imposed 
  6.19  by the court. 
  6.20     As used in this section, "restitution" includes: 
  6.21     (i) payment of compensation to the victim or the victim's 
  6.22  family; and 
  6.23     (ii) if the victim is deceased or already has been fully 
  6.24  compensated, payment of money to a victim assistance program or 
  6.25  other program directed by the court. 
  6.26     In controlled substance crime cases, "restitution" also 
  6.27  includes payment of compensation to a government entity that 
  6.28  incurs loss as a direct result of the controlled substance crime.
  6.29     Sec. 6.  [EFFECTIVE DATE.] 
  6.30     Sections 1, 2, 4, and 5 are effective October 1, 1997, and 
  6.31  apply to crimes committed on or after that date.  Section 3 is 
  6.32  effective the day after final enactment.