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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Criminal Code
Chapter : RESTITUTION AND FINES
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13-801 Fines for felonies
A. A sentence to pay a fine for a felony shall be a sentence to pay an amount fixed
by the court not more than one hundred fifty thousand dollars.
B. A judgment that the defendant shall pay a fine, with or without the alternative
of imprisonment, shall constitute a lien in like manner as a judgment for money rendered
in a civil action.
C. This section does not apply to an enterprise.
13-802 Fines for misdemeanors
A. A sentence to pay a fine for a class 1 misdemeanor shall be a sentence to pay an
amount, fixed by the court, not more than two thousand five hundred dollars.
B. A sentence to pay a fine for a class 2 misdemeanor shall be a sentence to pay an
amount, fixed by the court, not more than seven hundred fifty dollars.
C. A sentence to pay a fine for a class 3 misdemeanor shall be a sentence to pay an
amount, fixed by the court, not more than five hundred dollars.
D. A sentence to pay a fine for a petty offense shall be a sentence to pay an
amount, fixed by the court, of not more than three hundred dollars.
E. A judgment that the defendant shall pay a fine, with or without the alternative
of imprisonment, shall constitute a lien in like manner as a judgment for money rendered
in a civil action.
F. This section does not apply to an enterprise.
13-803 Fines against enterprises
A. Except as provided in sections 13-822 and 13-823, a sentence to pay a fine that
is imposed on an enterprise for an offense defined in this title or for an offense
defined outside this title for which no special enterprise fine is specified shall be a
sentence to pay an amount, fixed by the court, of not more than:
1. For a felony, one million dollars.
2. For a class 1 misdemeanor, twenty thousand dollars.
3. For a class 2 misdemeanor, ten thousand dollars.
4. For a class 3 misdemeanor, two thousand dollars.
5. For a petty offense, one thousand dollars.
B. If the court imposes a fine, the court shall impose as a presumptive fine the
median of the allowable range under subsection A of this section and the presumptive fine
may be mitigated or aggravated pursuant to this section.
C. After considering the factors listed in subsection F of this section, the court
shall determine an appropriate fine. If the court deviates from the presumptive fine, the
court shall set forth on the record the fine, if any, and how the relevant factors listed
in subsection F of this section affected the court's determination.
D. Subsections B, C and F of this section and sections 13-822 and 13-823 do not
apply to sentences for misdemeanor violations that are prosecuted in justice court or
municipal court, except that the court may consider the factors listed in subsection F of
this section and section 13-822 in determining the fine to impose.
E. A judgment that the enterprise shall pay a fine shall constitute a lien in like
manner as a judgment for money rendered in a civil action.
F. If the court deviates from the presumptive fine, the court shall base its
decision on any evidence or information that was introduced or submitted to it before
sentencing or on any evidence that was previously heard at trial and shall consider the
following factors, if relevant:
1. The income and assets of the enterprise and the economic impact of the penalty
on the enterprise.
2. Any prior criminal, civil or regulatory misconduct by the enterprise.
3. The degree of harm resulting from the offense.
4. Whether the offense resulted in pecuniary gain.
5. Whether the enterprise made good faith efforts to comply with any applicable
requirements.
6. The duration of the offense.
7. The role of the directors, officers or principals of the enterprise in the
offense.
8. Whether the offense involved an unusually vulnerable victim due to age, physical
or mental condition or any other factor that would make the victim particularly
susceptible to criminal conduct.
9. Whether the offense involved a threat to a market.
10. Whether the enterprise breached a fiduciary duty in committing the offense.
11. The obligation of the enterprise to pay restitution.
12. Any other factors that the court deems appropriate.
13-804.01 Reimbursement of incarceration costs; misdemeanors
A. The court shall order a person who is convicted of a misdemeanor offense and who
is sentenced to a term of incarceration to reimburse the political subdivision that is
responsible for the costs of the person's incarceration for the incarceration costs.
B. The court may determine the amount of incarceration costs to be paid based on
the following factors:
1. The per diem per person cost of incarceration incurred by the political
subdivision that incarcerates the person.
2. The person's ability to pay part or all of the incarceration costs.
13-804 Restitution for offense causing economic loss; fine for reimbursement of public monies
A. Upon a defendant's conviction for an offense causing economic loss to any
person, the court, in its sole discretion, may order that all or any portion of the fine
imposed be allocated as restitution to be paid by the defendant to any person who
suffered an economic loss caused by the defendant's conduct.
B. In ordering restitution for economic loss pursuant to section 13-603, subsection
C or subsection A of this section, the court shall consider all losses caused by the
criminal offense or offenses for which the defendant has been convicted.
C. The court shall not consider the economic circumstances of the defendant in
determining the amount of restitution.
D. Restitution payments that are ordered pursuant to section 13-603 and this
section shall not be stayed if the defendant files a notice of appeal, and the payments
may be held by the court pending the outcome of an appeal.
E. After the court determines the amount of restitution, the court or a staff
member designated by the court, including a probation officer, shall specify the manner
in which the restitution is to be paid. In deciding the manner in which the restitution
is to be paid, the court or a staff member designated by the court, including a probation
officer, shall make reasonable efforts to contact any victim who has requested notice
pursuant to sections 13-4415 and 13-4417, shall take into account the views of the victim
and shall consider the economic circumstances of the defendant. In considering the
economic circumstances of the defendant, the court shall consider all of the defendant's
assets and income, including workers' compensation and social security benefits. The
court shall make all reasonable efforts to ensure that all persons entitled to
restitution pursuant to a court order promptly receive full restitution. The court may
enter any reasonable order necessary to accomplish this. If a victim has received
reimbursement for the victim's economic loss from an insurance company, a crime victim
compensation program funded pursuant to section 41-2407 or any other entity, the court
shall order the defendant to pay the restitution to that entity. If a victim has
received only partial reimbursement for the victim's economic loss, the court shall order
the defendant to pay restitution first to the victim and then to the entity that
partially reimbursed the victim. If a probation, parole or community supervision officer
has reason to believe that court ordered restitution is not being made, the officer shall
report to the court supervising the probationer or the board of executive clemency that
the defendant has failed to make restitution in a timely manner and the court or the
board of executive clemency may revoke the defendant's probation, parole or community
supervision.
F. If more than one defendant is convicted of the offense which caused the loss,
the defendants are jointly and severally liable for the restitution.
G. If the court does not have sufficient evidence to support a finding of the
amount of restitution or the manner in which the restitution should be paid, it may
conduct a hearing upon the issue according to procedures established by rule of
court. The court may call the defendant to testify and to produce information or
evidence. The state does not represent persons who have suffered economic loss at the
hearing but may present evidence or information relevant to the issue of restitution.
H. After making the determinations in subsection B of this section the trial court
shall enter a restitution order for each defendant which sets forth all of the following:
1. The total amount of restitution the defendant owes all persons.
2. The total amount of restitution owed to each person.
3. The manner in which the restitution is to be paid.
I. The restitution order under subsection H of this section may be supported by
evidence or information introduced or submitted to the court before sentencing or any
evidence previously heard by the judge during the proceedings.
J. A restitution lien shall be created in favor of the state for the total amount
of the restitution, fine, surcharges, assessments, costs, incarceration costs and fees
ordered, if any.
K. Notwithstanding any other law, a restitution lien is created in favor of a
victim of the defendant ordered to make restitution. Monies received monthly from the
defendant shall be applied first to satisfy the restitution order entered by the court
and the payment of any restitution in arrears. Any monies that are owed by this state to
a person who is under a restitution order shall be assigned first to discharge the
restitution order, including any tax refund that is owed to the defendant.
L. If the defendant, the state or persons entitled to restitution pursuant to a
court order disagree with the manner of payment established in subsection E of this
section, the defendant, court or person entitled to restitution may petition the court at
any time to change the manner in which the restitution is paid. Before modifying the
order pertaining to the manner in which the restitution is paid, the court shall give
notice and an opportunity to be heard to the defendant, the state and, upon request,
persons entitled to restitution pursuant to a court order.
13-805 Jurisdiction
A. The trial court shall retain jurisdiction of the case for purposes of modifying
the manner in which court-ordered payments are made until paid in full or until the
defendant's sentence expires. At the time the defendant completes the defendant's period
of probation or the defendant's sentence, the court shall enter both:
1. A criminal restitution order in favor of the state for the unpaid balance, if
any, of any fines, costs, incarceration costs, fees, surcharges or assessments imposed.
2. A criminal restitution order in favor of each person entitled to restitution for
the unpaid balance of any restitution ordered.
B. The clerk of the court shall notify each person who is entitled to restitution
of the criminal restitution order.
C. A criminal restitution order may be recorded and enforced as any civil judgment,
except that a criminal restitution order does not require renewal pursuant to section
12-1611 or 12-1612. Enforcement of a criminal restitution order by any person who is
entitled to restitution or by the state includes the collection of interest that accrues
pursuant to section 44-1201 in the same manner as any civil judgment. A criminal
restitution order does not expire until paid in full.
D. A criminal restitution order is a criminal penalty for the purposes of a federal
bankruptcy involving the defendant. 13-806 Restitution lien
A. The state or any person entitled to restitution pursuant to a court order may
file in accordance with this section a restitution lien. A filing fee or any other
charge is not required for filing a restitution lien.
B. A restitution lien shall be signed by the attorney representing the state in the
criminal action or by a magistrate and shall set forth all of the following information:
1. The name and date of birth of the defendant whose property or other interests
are subject to the lien.
2. The present residence or principal place of business of the person named in the
lien, if known.
3. The criminal proceeding pursuant to which the lien is filed, including the name
of the court, the title of the action and the court's file number.
4. The name and address of the attorney representing the state in the proceeding
pursuant to which the lien is filed or the name and address of the person entitled to
restitution pursuant to a court order filing the lien.
5. A statement that the notice is being filed pursuant to this section.
6. The amount of restitution the defendant in the proceeding has been ordered to
pay or an estimated amount of economic loss caused by the offense alleged in the
proceeding if no restitution order has been entered yet.
7. A statement that the total amount of restitution owed will change and that the
clerk of the court in which the proceeding was or is pending shall maintain a record of
the outstanding balance.
C. A restitution lien may be filed by:
1. A prosecutor in a criminal proceeding in which there was an economic loss after
the filing of a misdemeanor complaint or felony information or indictment. At the time
of arraignment the prosecutor shall give the defendant notice of any restitution lien
filed.
2. A victim in a criminal proceeding after restitution is determined and ordered by
the trial court following pronouncement of the judgment and sentence.
D. A restitution lien is perfected against interests in personal property by filing
the lien with the secretary of state, except that in the case of titled motor vehicles it
shall be filed with the department of transportation motor vehicle division. A
restitution lien is perfected against interests in real property by filing the lien with
the county recorder of the county in which the real property is located. The state or a
victim may give the additional notice of the lien as either deems appropriate.
E. The filing of a restitution lien in accordance with this section creates a lien
in favor of the state or the victim in all of the following:
1. Any interest of the defendant in real property situated in the county in which
the lien is filed then maintained or thereafter acquired in the name of the defendant
identified in the lien.
2. Any interest of the defendant in personal property situated in this state then
maintained or thereafter acquired in the name of the defendant identified in the lien.
3. Any property identified in the lien to the extent of the defendant's interest in
the property.
F. The filing of a restitution lien under this section is notice to all persons
dealing with the person or property identified in the lien of the state's or victim's
claim. The lien created in favor of the state or the victim in accordance with this
section is superior and prior to the claims or interests of any other person, except a
person possessing any of the following:
1. A valid lien perfected before the filing of the restitution lien.
2. In the case of real property, an interest acquired and recorded before the
filing of the restitution lien.
3. In the case of personal property, an interest acquired before the filing of the
restitution lien.
G. This section does not limit the right of the state or any other person entitled
to restitution to obtain any order or injunction, receivership, writ, attachment,
garnishment or other remedy authorized by law.
H. Following the entry of the judgment and sentence in the criminal case, if the
trial court sentences the defendant to pay a fine or awards costs of investigation or
prosecution, the state may file a restitution lien pursuant to this section for the
amount of the fine or costs.
I. A criminal restitution lien is a criminal penalty for the purposes of any
federal bankruptcy involving the defendant.
13-807 Civil actions by victims or other persons
A defendant convicted in a criminal proceeding is precluded from subsequently
denying in any civil proceeding brought by the victim or this state against the criminal
defendant the essential allegations of the criminal offense of which he was adjudged
guilty, including judgments of guilt resulting from no contest pleas. An order of
restitution in favor of a person does not preclude that person from bringing a separate
civil action and proving in that action damages in excess of the amount of the
restitution order.
13-808 Time and method of payment of fines; conditions of probation; no limitation on restitution and other assessments
A. If a defendant is sentenced to pay a fine alone or in addition to any other
sentence, the court or a probation officer or a staff member designated by the court may
grant permission for payment to be made within a specified period of time or in specified
installments. If no such permission is embodied in the sentence the fine shall be
payable immediately.
B. If a defendant sentenced to pay a fine, restitution, penalty, assessment,
incarceration cost or surcharge is also sentenced to probation, the court shall make
payment of the fine, restitution, penalty, assessment, incarceration cost or surcharge a
condition of probation.
C. The amount of restitution, assessments, incarceration costs and surcharges is
not limited by the maximum fine that may be imposed under section 13-801 or 13-802.
13-809 Priority of payments; application to traffic offenses; orders to reimburse public monies
A. If a defendant is sentenced to pay a fine or incarceration costs, payment and
enforcement of restitution take priority over payment to the state.
B. Section 13-804 does not apply to traffic offenses, except for a violation of
section 28-661, 28-693, 28-1381, 28-1382 or 28-1383 or any local ordinance relating to
the same subject matter of such sections.
C. The court may impose an additional fine on sentencing for any offense to require
that the defendant reimburse the law enforcement agency for any public monies paid to any
person.
13-810 Consequences of nonpayment of fines, fees, restitution or incarceration costs
A. If a defendant sentenced to pay a fine, fee, restitution or incarceration costs
defaults in the payment of such fine, fee, restitution or incarceration costs or of any
installment, the clerk of the court imposing the fine, fee, restitution or incarceration
costs shall notify the prosecutor, the sentencing court and any person entitled to
restitution pursuant to a court order. The court, on motion of the prosecuting attorney,
on petition of any person entitled to restitution pursuant to a court order or on its own
motion, shall require the defendant to show cause why the defendant's default should not
be treated as contempt and may issue a summons or a warrant of arrest for the defendant's
appearance.
B. At any hearing on the order to show cause the court, the prosecuting attorney or
a person entitled to restitution may examine the defendant under oath concerning the
defendant's financial condition, employment and assets or on any other matter relating to
the defendant's ability to pay restitution.
C. If the court finds that the defendant has wilfully failed to pay a fine, fee,
restitution or incarceration costs or finds that the defendant has intentionally refused
to make a good faith effort to obtain the monies required for the payment, the court
shall find that the default constitutes contempt and may do one of the following:
1. Order the defendant incarcerated in the county jail until the fine, fee,
restitution or incarceration costs, or a specified part of the fine, fee, restitution or
incarceration costs, is paid.
2. Revoke the defendant's probation, parole or community supervision and sentence
the defendant to prison pursuant to law.
3. Enter an order pursuant to section 13-812. The levy or execution for the
collection of a fine, fee, restitution or incarceration costs does not discharge a
defendant who is incarcerated for nonpayment of the fine, fee, restitution or
incarceration costs until the amount of the fine, fee, restitution or incarceration costs
is collected.
D. If the court finds that the default is not wilful and that the defendant cannot
pay despite sufficient good faith efforts to obtain the monies, the court may take any
lawful action including:
1. Modify the manner in which the restitution, fine, fee or incarceration costs are
to be paid.
2. Enter any reasonable order which would assure compliance with the order to pay.
3. Enter an order pursuant to section 13-812. The levy or execution for the
collection of a fine, fee, restitution or incarceration costs does not discharge a
defendant incarcerated for nonpayment of the fine, fee, restitution or incarceration
costs until the amount of the fine, fee, restitution or incarceration costs is collected.
E. If a fine, fee, restitution or incarceration costs are imposed on an enterprise
it is the duty of the person or persons authorized to make disbursement from the assets
of the enterprise to pay them from those assets, and their failure to do so shall be held
a contempt unless they make the showing required in subsection A of this section.
13-811 Disposition of fines
A. Except as provided in subsections B and C of this section, all fines collected
in any court, except municipal courts, shall be paid to the county treasurer of the
county in which the court is held. All fines collected in the superior court for
violation of a city or town ordinance shall be paid to the county treasurer.
B. Except as provided in subsection C of this section, all fines or costs collected
in any court for offenses indicted by a state grand jury or for other offenses prosecuted
by the attorney general shall be paid to the anti-racketeering revolving fund established
in section 13-2314.01.
C. Except as provided in section 13-821, all fines collected in any court for
offenses included in chapter 34 of this title and prosecuted by a city prosecutor, a
county attorney or the attorney general shall be paid to the drug and gang enforcement
account of the criminal justice enhancement fund established in section 41-2402.
13-812 Garnishment for nonpayment of fines, fees, restitution or incarceration costs
A. After a hearing on an order to show cause pursuant to section 13-810,
subsection A or after a hearing on a petition to revoke probation pursuant to section
13-804, subsection E or the rules of criminal procedure, the court may issue a writ of
criminal garnishment for any fine, fee, restitution or incarceration costs.
B. The court may order garnishment for monies that are owed to a victim or the
court, the clerk of the court or the prosecuting attorney pursuant to a court order to
pay any fine, fee, restitution or incarceration costs. A writ of criminal garnishment
applies to any of the following:
1. The defendant's earnings as defined in section 12-1598.
2. Indebtedness that is owed to a defendant by a garnishee for amounts that are not
earnings.
3. Monies that are held by a garnishee on behalf of a defendant.
4. The defendant's personal property that is in the possession of a garnishee.
5. If the garnishee is a corporation, shares or securities of a corporation or a
proprietary interest in a corporation that belongs to a defendant.
6. The defendant's earnings or monies that are held by the state department of
corrections while the defendant is in the custody of the department.
13-813 Issuance of writ of garnishment; service and return of writ
A. The court shall direct the writ of criminal garnishment to the sheriff, the
constable or any other officer who is authorized by law to serve process in the county in
which the garnishee is alleged to be. The writ shall summon the garnishee to immediately
appear to answer the writ before the court issuing the writ. The garnishee shall appear
within the time specified in the writ. The writ shall state all of the following:
1. The amount due to the victim or court, clerk of the court or prosecuting
attorney as of the date on which the writ is issued.
2. The name and address of the garnishee or the garnishee's authorized agent.
3. The name and address of the victim or the court, clerk of the court or
prosecuting attorney presenting the writ.
4. The last known mailing address of the defendant.
B. The victim or the court, the clerk of the court or the prosecuting attorney
shall serve the following on the garnishee:
1. Two copies of the writ of garnishment and summons.
2. A copy of the criminal restitution order.
3. Four copies of the answer form.
4. Two copies of the notice to the defendant.
5. Two copies of the instructions to the garnishee.
C. The victim or the court, the clerk of the court or the prosecuting attorney
shall serve on the defendant a copy of the writ of garnishment.
D. The victim or the court, the clerk of the court or the prosecuting attorney may
serve a copy of the writ of garnishment on the manager or other officer of a banking
corporation or association, savings bank, savings and loan association, credit union,
trust company or title insurance company to levy monies that are owed pursuant to a writ
of criminal garnishment by one of these organizations or to levy credits or other effects
that belong to a defendant and that are in the possession of or under the control of one
of these organizations. The copy of the writ shall be served at any office or branch
that is located in the county in which the service is made. A garnishment is not
effective as to any debt owed by a banking corporation or association, savings bank,
savings and loan association, credit union, trust company or title insurance company if
the account evidencing the indebtedness is carried at an office or branch other than the
office or branch named in the writ and at which service is made or, as to credits or
other effects in its possession or under its control, at any other office or branch
unless the service of the writ is accompanied by twenty-five dollars to be paid to the
garnishee for the costs of the search. The writ is effective on the payment of the
search fee as to any debt owing by a banking corporation or association, savings bank,
savings and loan association, credit union, trust company or title insurance company if
the account evidencing the indebtedness is carried at any office or branch located in
this state, or as to any credits, property or other effects in its possession or under
its control, at any office or branch located in this state.
13-815 Initial lien on earnings
A. If the writ of criminal garnishment is for earnings of the defendant, the writ
is a lien on the earnings of the defendant from the date of service on the garnishee
until any of the following occurs:
1. An order of continuing lien is entered.
2. If an order is not entered, within forty-five days after the date on which the
garnishee files an answer.
3. The writ is quashed or released or becomes ineffective.
B. The garnishee shall not remit any withheld earnings to the party
obtaining the writ until the court enters an order pursuant to section 13-818.
13-816 Answer; time and form
A. The garnishee shall answer the writ of criminal restitution in the court issuing
the writ within ten days after being served.
B. If the writ of criminal garnishment is for earnings of the defendant, the
garnishee shall answer pursuant to section 12-1598.08. If the writ of criminal
garnishment is for indebtedness, monies, personal property or shares of stock, the
garnishee shall answer pursuant to section 12-1579.
13-817 Objection to garnishment; hearing; discharge of garnishee
A. A party who has an objection to the writ of garnishment or the answer may file a
written objection and may request a hearing. The party shall state the grounds for
objection in writing and shall deliver copies of the objection to all of the parties to
the writ.
B. The court shall hold a hearing on an objection to the writ or the answer within
ten days after receiving the request. The court may continue the hearing for good cause
on terms the court deems appropriate.
C. The court may discharge the garnishee from the writ of criminal restitution if
it appears from the garnishee's answer that the garnishee did not owe earnings to the
defendant or have the defendant's indebtedness, monies, property or stock in the
garnishee's possession and if no written objection to the answer is filed. The court
shall enter an order discharging the garnishee.
13-818 Order on writ of garnishment for money or property
A. If the garnishee's answer shows that the garnishee holds indebtedness or monies
of the defendant, the court shall enter an order of criminal garnishment that requires
the garnishee to immediately transfer the indebtedness or monies to the victim or to the
court, the clerk of the court or the prosecuting attorney who is named in the writ of
garnishment.
B. If the garnishee's answer shows that the garnishee holds personal property or
stock of the defendant, the court shall enter an order against the garnishee to hold the
personal property or stock of the defendant pending service of a writ of special
execution pursuant to section 12-1554.
C. The party who obtains the writ of garnishment shall deliver a copy of the order
on the writ to the garnishee and the defendant.
D. An order that is entered pursuant to subsection A or B of this section shall not
order more money, stocks or property transferred than is reasonably necessary to satisfy
the amount of the outstanding balance of the underlying criminal restitution order.
E. A bank deposit made in the name of two or more persons is subject to garnishment
pursuant to section 12-1595, except that "judgment creditor" includes a victim or the
court, the clerk of the court or the prosecuting attorney that obtains the writ of
garnishment and "judgment debtor" includes a criminal defendant.
13-819 Order on writ of garnishment for earnings; continuing lien
A. The party who obtains the writ of garnishment for earnings shall deliver a copy
of the order on the writ to the garnishee and the defendant.
B. After service or delivery of the order is made, section 12-1598.10 applies,
except that "judgment creditor" includes a victim or the court, the clerk of the court or
the prosecuting attorney that obtains the writ of garnishment and "judgment debtor"
includes a criminal defendant.
C. Section 12-1598.12 applies to continuing liens for writs of criminal
garnishment. Section 12-1598.12 applies to reporting by the party obtaining the writ of
criminal garnishment, except that "judgment creditor" includes a victim or the court, the
clerk of the court or the prosecuting attorney that obtains the writ of garnishment and
"judgment debtor" includes a criminal defendant.
13-820 Contempt proceedings; failure to comply with order
If the garnishee fails to comply with the terms of the order of criminal garnishment
within thirty days after receiving the order, the victim or the court, the clerk of the
court or the prosecuting attorney may petition the court for an order to show cause why
the garnishee should not be held in contempt. If the court finds that the failure was
wilful or the result of gross negligence, the court shall find the garnishee in contempt
and shall award the petitioner reasonable attorney fees, costs and an additional penalty
of not more than five hundred dollars.
13-821 Fines for drug offenses
A. In addition to any other fine or restitution, if a person is convicted of or
adjudicated delinquent for a violation of chapter 34 of this title, the court may order
the person to pay a fine in one of the following amounts:
1. For a first offense, at least one thousand dollars.
2. For a second or subsequent offense, at least two thousand dollars.
B. The court may suspend the imposition of a fine pursuant to this section if the
person agrees to enter a residential drug rehabilitation program approved by the court
and to pay for all or a part of the costs associated with the rehabilitation program. On
successfully completing the program, the person may apply to the court for a reduction in
the amount of the fine imposed pursuant to this section. If the person establishes to
the satisfaction of the court that the person successfully completed the program, the
court may reduce the fine by the amount the person paid to participate in the
rehabilitation program. If the person fails to complete the program, the court shall
enforce the collection of the entire fine that was imposed pursuant to subsection A.
C. The court shall transmit the monies collected pursuant to this section to the
supreme court for the purpose of providing drug treatment services to adult probationers
through the community punishment program established in title 12, chapter 2, article 11.
13-822 Effective programs to prevent and detect violations of law; fines
A. If based on any evidence or information introduced or submitted to the court
before sentencing or on any evidence that was previously heard at trial the court finds
by a preponderance of the evidence that an enterprise had an effective program to prevent
and detect violations of law in effect at the time the offense was committed, the court
shall set forth on the record its factual findings and the reasons in support of its
findings and shall reduce the fine imposed pursuant to section 13-803, if any, by
twenty-five per cent.
B. An effective program to prevent and detect violations of law requires at a
minimum that the enterprise does the following:
1. Establish compliance standards and procedures to be followed by its employees
and other agents that are reasonably capable of reducing the prospect of violations of
law.
2. Assign specific high-level personnel within the enterprise overall
responsibility to oversee compliance with the standards and procedures.
3. Use due care not to delegate substantial discretionary authority to individuals
whom the enterprise knows, or should know through the exercise of due diligence, have a
propensity to engage in illegal activities.
4. Take steps to communicate effectively its standards and procedures to all
employees and other agents, including requiring participation in training programs or
disseminating publications that explain in a practical manner what is required.
5. Take reasonable steps to achieve compliance with its standards, including the
use of monitoring and auditing systems reasonably designed to detect violations of law by
its employees and other agents and having in place and publicizing a reporting system
where employees and other agents can report violations of law by others within the
enterprise without fear of retribution.
6. Consistently enforce the standards through appropriate disciplinary mechanisms,
including, as appropriate, discipline of individuals responsible for the failure to
detect a violation.
7. After a violation is detected, take all reasonable steps to respond
appropriately to the violation and to prevent further similar violations, including any
necessary modifications to its program to prevent and detect violations of law.
C. Relevant factors for determining precise actions necessary for an effective
program to prevent and detect violations of law include:
1. The size of the enterprise.
2. The likelihood that certain violations may occur because of the nature of the
enterprise's business.
3. The prior history of the enterprise.
D. The failure of an enterprise to incorporate and follow applicable industry
practice or the standards called for by any applicable governmental rule weighs against a
finding of an effective program to prevent and detect violations of law.
E. An enterprise's failure to prevent or detect violations of law, by itself, does
not mean that the program is not effective if the court finds that the enterprise
exercised due diligence in establishing and maintaining its program at the time the acts
constituting the offense were committed.
F. This section does not apply if any of the following applies:
1. A high managerial agent of the enterprise, a unit of the enterprise with two
hundred or more employees and within which the offense was committed or an individual who
is responsible for the administration or enforcement of a program to prevent and detect
violations of law participated in, condoned or was wilfully ignorant of the offense. It
is a rebuttable presumption that the enterprise did not have an effective program to
prevent and detect violations of law if an individual with substantial supervisory
authority participates in an offense.
2. After becoming aware of an offense, the enterprise unreasonably delayed
reporting the offense to the appropriate governmental authorities. An enterprise shall
report an offense within seventy-two hours.
3. The enterprise wilfully obstructed or impeded, attempted to obstruct or impede
or aided, abetted or encouraged the obstruction of justice during the investigation,
prosecution or sentencing of the offense or, with knowledge of the offense, failed to
take reasonable steps to prevent the obstruction or impediment or the attempted
obstruction or impediment.
4. If the offense is discovered by the government before disclosure by the
enterprise unless, under the circumstances of the offense, no high managerial agent knew
or could reasonably have known of the conduct constituting the offense.
13-823 Dangerous and repeat enterprise offenders; fines
A. Whether or not an enterprise maintains an effective program to prevent and
detect violations of law pursuant to section 13-822, the court may subject an enterprise
to five times the maximum fine authorized by section 13-803 if based on any evidence that
was introduced before sentencing or that was heard at trial the court finds by a
preponderance of the evidence that any of the following applies to the commission of the
offense:
1. The offense violated a judicial or administrative order or injunction, other
than a violation of a condition of probation or that the enterprise or a separately
managed line of business violated a condition of probation by engaging in misconduct
similar to that for which it was placed on probation.
2. The offense involved conduct that was malicious or wanton.
3. The offense involved conduct that posed an imminent and substantial hazard to
human health or to the environment or resulted in serious actual harm to human health or
to the environment and the enterprise continued the conduct after receiving notice.
B. For the purposes of this section, an enterprise is deemed to have received
notice if an officer, director or high managerial agent has actual knowledge that the
enterprise is engaging in the conduct that constitutes a violation of law and the
officer, director or high managerial agent knows or is recklessly indifferent to the fact
that the conduct is or may be harmful.
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