2016 North Dakota Century Code Title 12.1 Criminal Code Chapter 12.1-32 Penalties and Sentencing
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CHAPTER 12.1-32
PENALTIES AND SENTENCING
12.1-32-01. Classification of offenses - Penalties.
Offenses are divided into seven classes, which are denominated and subject to maximum
penalties, as follows:
1. Class AA felony, for which a maximum penalty of life imprisonment without parole may
be imposed. The court must designate whether the life imprisonment sentence
imposed is with or without an opportunity for parole. Notwithstanding the provisions of
section 12-59-05, a person found guilty of a class AA felony and who receives a
sentence of life imprisonment with parole, shall not be eligible to have that person's
sentence considered by the parole board for thirty years, less sentence reduction
earned for good conduct, after that person's admission to the penitentiary.
2. Class A felony, for which a maximum penalty of twenty years' imprisonment, a fine of
twenty thousand dollars, or both, may be imposed.
3. Class B felony, for which a maximum penalty of ten years' imprisonment, a fine of
twenty thousand dollars, or both, may be imposed.
4. Class C felony, for which a maximum penalty of five years' imprisonment, a fine of ten
thousand dollars, or both, may be imposed.
5. Class A misdemeanor, for which a maximum penalty of one year's imprisonment, a
fine of three thousand dollars, or both, may be imposed.
6. Class B misdemeanor, for which a maximum penalty of thirty days' imprisonment, a
fine of one thousand five hundred dollars, or both, may be imposed.
7. Infraction, for which a maximum fine of one thousand dollars may be imposed. Any
person convicted of an infraction who has, within one year prior to commission of the
infraction of which the person was convicted, been previously convicted of an offense
classified as an infraction may be sentenced as though convicted of a class B
misdemeanor. If the prosecution contends that the infraction is punishable as a class B
misdemeanor, the complaint shall specify that the offense is a misdemeanor.
This section shall not be construed to forbid sentencing under section 12.1-32-09, relating to
extended sentences.
12.1-32-01.1. Organizational fines.
Any organization, as defined in section 12.1-03-04, shall, upon conviction, be subject to a
maximum fine in accordance with the following classification:
1. For a class A felony, a maximum fine of one hundred thousand dollars.
2. For a class B felony, a maximum fine of seventy thousand dollars.
3. For a class C felony, a maximum fine of fifty thousand dollars.
4. For a class A misdemeanor, a maximum fine of thirty thousand dollars.
5. For a class B misdemeanor, a maximum fine of twenty thousand dollars.
Nothing in this section shall be construed as preventing the imposition of the sanction provided
for in section 12.1-32-03, nor as preventing the prosecution of agents of the organization under
section 12.1-03-03.
12.1-32-02. Sentencing alternatives - Credit for time in custody - Diagnostic testing.
1. Every person convicted of an offense who is sentenced by the court must be
sentenced to one or a combination of the following alternatives, unless the sentencing
alternatives are otherwise specifically provided in the statute defining the offense or
sentencing is deferred under subsection 4:
a. Payment of the reasonable costs of the person's prosecution.
b. Probation.
c. A term of imprisonment, including intermittent imprisonment:
(1) In a state correctional facility in accordance with section 29-27-07, in a
regional corrections center, or in a county jail, if convicted of a felony or a
class A misdemeanor.
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In a county jail or in a regional corrections center, if convicted of a class B
misdemeanor.
(3) In a facility or program deemed appropriate for the treatment of the
individual offender, including available community-based programs.
(4) In the case of persons convicted of an offense who are under eighteen
years of age at the time of sentencing, the court is limited to sentencing the
minor defendant to a term of imprisonment in the custody of the department
of corrections and rehabilitation.
d. A fine.
e. Restitution for damages resulting from the commission of the offense.
f. Restoration of damaged property or other appropriate work detail.
g. Commitment to an appropriate licensed public or private institution for treatment
of alcoholism, drug addiction, or mental disease or defect.
h. Commitment to a sexual offender treatment program.
Except as provided by section 12.1-32-06.1, sentences imposed under this subsection
may not exceed in duration the maximum sentences of imprisonment provided by
section 12.1-32-01, section 12.1-32-09, or as provided specifically in a statute defining
an offense. This subsection does not permit the unconditional discharge of an offender
following conviction. A sentence under subdivision e or f must be imposed in the
manner provided in section 12.1-32-08.
Credit against any sentence to a term of imprisonment must be given by the court to a
defendant for all time spent in custody as a result of the criminal charge for which the
sentence was imposed or as a result of the conduct on which such charge was based.
"Time spent in custody" includes time spent in custody in a jail or mental institution for
the offense charged, whether that time is spent prior to trial, during trial, pending
sentence, or pending appeal. The total amount of credit the defendant is entitled to for
time spent in custody must be stated in the criminal judgment.
A court may suspend the execution of all or a part of the sentence imposed. The court
shall place the defendant on probation during the term of suspension.
A court, upon application or its own motion, may defer imposition of sentence. The
court must place the defendant on probation during the period of deferment. An order
deferring imposition of sentence is reviewable upon appeal from a verdict or judgment.
In any subsequent prosecution, for any other offense, the prior conviction for which
imposition of sentence is deferred may be pleaded and proved, and has the same
effect as if probation had not been granted or the information or indictment dismissed
under section 12.1-32-07.1.
A court may, prior to imposition of sentence, order the convicted offender committed to
an appropriate licensed public or private institution for diagnostic testing for such
period of time as may be necessary, but not to exceed thirty days. The court may, by
subsequent order, extend the period of commitment for not to exceed thirty additional
days. The court may also order such diagnostic testing without ordering commitment to
an institution. Validity of a sentence must not be challenged on the ground that
diagnostic testing was not performed pursuant to this subsection.
All sentences imposed must be accompanied by a written statement by the court
setting forth the reasons for imposing the particular sentence. The statement must
become part of the record of the case.
If an offender is sentenced to a term of imprisonment, that term of imprisonment
commences at the time of sentencing, unless, upon motion of the defendant, the court
orders the term to commence at some other time.
Unless otherwise specifically authorized in the statute defining the offense, a court
may not include a minimum term of imprisonment as part of its sentence.
A person who is convicted of a felony and sentenced to imprisonment for not more
than one year is deemed to have been convicted of a misdemeanor upon successful
completion of the term of imprisonment and a term of probation imposed as a part of
the sentence. This subsection does not apply to a person convicted of violating
subdivision a, b, or c of subsection 1 of section 19-03.1-23.
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A court shall order a defendant to pay fifty dollars to the department of corrections and
rehabilitation at the time a presentence investigation is initiated to partially defray the
costs incurred by the department for the preparation of the presentence report. The
court may also order that any additional costs incurred by the department relating to
the presentence investigation and report be paid by the defendant at a rate of payment
up to the full costs of conducting the investigation and preparing the report as
established by the department.
Before sentencing a defendant on a felony charge under section 12.1-20-03,
12.1-20-03.1, 12.1-20-11, 12.1-27.2-02, 12.1-27.2-03, 12.1-27.2-04, or 12.1-27.2-05, a
court shall order the department of corrections and rehabilitation to conduct a
presentence investigation and to prepare a presentence report. A presentence
investigation for a charge under section 12.1-20-03 must include a risk assessment. A
court may order the inclusion of a risk assessment in any presentence investigation. In
all felony or class A misdemeanor offenses, in which force, as defined in section
12.1-01-04, or threat of force is an element of the offense or in violation of section
12.1-22-02, or an attempt to commit the offenses, a court, unless a presentence
investigation has been ordered, must receive a criminal record report before the
sentencing of the defendant. Unless otherwise ordered by the court, the criminal
record report must be conducted by the department of corrections and rehabilitation
after consulting with the prosecuting attorney regarding the defendant's criminal
record. The criminal record report must be in writing, filed with the court before
sentencing, and made a part of the court's record of the sentencing proceeding.
12.1-32-02.1. Mandatory prison terms for armed offenders.
1. Notwithstanding any other provision of this title, a term of imprisonment must be
imposed upon an offender and served without benefit of parole when:
a. In the course of committing an offense, the offender inflicts or attempts to inflict
bodily injury upon another, threatens or menaces another with imminent bodily
injury with a dangerous weapon, explosive, destructive device, or firearm; or
b. The offender possesses or has within immediate reach and control a dangerous
weapon, explosive, destructive device, or firearm while in the course of
committing any felony offense under subsection 1, 2, or 7 of section 19-03.1-23.
2. This requirement applies only when possession of a dangerous weapon, explosive,
destructive device, or firearm has been charged and admitted or found to be true in the
manner provided by law, and must be imposed as follows:
a. If the offense for which the offender is convicted is a class AA, class A, or class B
felony, the court shall impose a minimum sentence of four years' imprisonment.
b. If the offense for which the offender is convicted is a class C felony, the court
shall impose a minimum sentence of two years' imprisonment.
3. This section applies even when being armed is an element of the offense for which the
offender is convicted.
4. An offender serving a sentence subject to this section may be eligible to participate in
a release program under section 12-48.1-02 during the last six months of the
offender's sentence.
12.1-32-02.2. Repayment of rewards paid by crimestoppers programs - Duties of
attorney general - Qualified local programs - Disbursement of moneys collected.
1. After a defendant has been convicted of a felony, the court may order the defendant to
repay all or part of any reward paid by a qualified local program. In determining
whether the defendant must repay the reward or part of the reward, the court shall
consider:
a. The ability of the defendant to make the payments, including any financial
hardship that payment may cause to the defendant's dependents.
b. Whether the information that was reported to the qualified local program
substantially contributed to the defendant being charged with the offense. To the
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extent allowed by law, the court shall respect the confidentiality of the records of
the qualified local program.
"A qualified local program" means a program approved by the attorney general to
receive repayment of rewards. The attorney general shall consider the organization,
continuity, leadership, community support, and general conduct of the program to
determine whether the repayments will be spent to further crime prevention purposes
of the program. The attorney general also shall determine that the qualified local
program provides rewards to persons who report information concerning criminal
activity and whether that information substantially leads to defendants being charged
with felonies.
If the court determines that a defendant is capable of repaying all or any part of a
reward paid by a qualified local program, the judgment must include a statement of the
amount owed, the identity of the qualified local program, and a schedule, if any, of
payments to be made by the defendant. The clerk of court may establish an account
within which to deposit repayments of rewards and at least quarterly shall pay over to
each qualified local program the sums that have been collected for the benefit of that
program.
A judgment that includes a repayment of reward, either alone or in conjunction with
section 29-26-22, may be docketed and thereafter constitutes a lien upon the real
estate of the defendant in the same manner as a judgment for money rendered in a
civil action.
12.1-32-02.3. Mandatory sentences - Exceptions.
1. In addition to any other provision of law, when sentencing an individual convicted of a
violation in chapter 19-03.1 for which there is a mandatory minimum sentence, the
court may depart from the applicable mandatory minimum sentence if the court, in
giving due regard to the nature of the crime, history and character of the defendant,
and the defendant's chances of successful rehabilitation, finds a compelling reason on
the record that imposition of the mandatory minimum sentence would result in
manifest injustice to the defendant and that the mandatory minimum sentence is not
necessary for the protection of the public.
2. Subsection 1 does not apply if the individual is sentenced under section 12.1-32-02.1.
3. Upon departing from a mandatory minimum sentence, a judge shall report to the state
court administrator who shall make available in electronic form and on the world wide
web an annual report by July 1 of each year on the total number of departures from
mandatory minimum sentences.
12.1-32-03. Special sanction for organizations.
When an organization is convicted of an offense, the court may, in addition to any other
sentence which may be imposed, require the organization to give notice of its conviction to the
persons or class of persons ostensibly harmed by the offense, by mail or by advertising in
designated areas or by designated media or otherwise.
12.1-32-03.1. Procedure for trial of infraction - Incidents.
1. Except as provided in this subsection, all procedural provisions relating to the trial of
criminal cases as provided in the statutes or rules relating to criminal procedure shall
apply to the trial of a person charged with an infraction. A person charged with an
infraction is not entitled to be furnished counsel at public expense nor to have a trial by
jury unless the person may be subject to a sentence of imprisonment under
subsection 7 of section 12.1-32-01.
2. Except as provided in this title, all provisions of law and rules of criminal procedure
relating to misdemeanors shall apply to infractions, including, but not limited to, the
powers of law enforcement officers, the jurisdiction of courts, the periods for
commencing action and bringing a case to trial, and the burden of proof.
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Following conviction of an infraction, the offender may be sentenced in accordance
with subsection 1 of section 12.1-32-02, except that a term of imprisonment may not
be imposed except in accordance with subsection 3 of section 12.1-32-05, or
subsection 7 of section 12.1-32-01.
If a statute provides that conduct is an infraction without specifically including a
requirement of culpability, no culpability is required.
12.1-32-04. Factors to be considered in sentencing decision.
The following factors, or the converse thereof where appropriate, while not controlling the
discretion of the court, shall be accorded weight in making determinations regarding the
desirability of sentencing an offender to imprisonment:
1. The defendant's criminal conduct neither caused nor threatened serious harm to
another person or his property.
2. The defendant did not plan or expect that his criminal conduct would cause or threaten
serious harm to another person or his property.
3. The defendant acted under strong provocation.
4. There were substantial grounds which, though insufficient to establish a legal defense,
tend to excuse or justify the defendant's conduct.
5. The victim of the defendant's conduct induced or facilitated its commission.
6. The defendant has made or will make restitution or reparation to the victim of his
conduct for the damage or injury which was sustained.
7. The defendant has no history of prior delinquency or criminal activity, or has led a
law-abiding life for a substantial period of time before the commission of the present
offense.
8. The defendant's conduct was the result of circumstances unlikely to recur.
9. The character, history, and attitudes of the defendant indicate that he is unlikely to
commit another crime.
10. The defendant is particularly likely to respond affirmatively to probationary treatment.
11. The imprisonment of the defendant would entail undue hardship to himself or his
dependents.
12. The defendant is elderly or in poor health.
13. The defendant did not abuse a public position of responsibility or trust.
14. The defendant cooperated with law enforcement authorities by bringing other
offenders to justice, or otherwise cooperated.
Nothing herein shall be deemed to require explicit reference to these factors in a presentence
report or by the court at sentencing.
12.1-32-04.1. Gross sexual imposition - Deferred imposition of sentence.
A person who violates subdivision d of subsection 1 or subdivision a of subsection 2 of
section 12.1-20-03 may not receive a deferred imposition of sentence unless that person proves
at sentencing by clear and convincing evidence that that person reasonably believed the victim
to be fifteen years of age or older.
12.1-32-05. Imposition of fine - Response to nonpayment.
1. The court, in making a determination of the propriety of imposing a sentence to pay a
fine, shall consider the following factors:
a. The ability of the defendant to pay without undue hardship.
b. Whether the defendant, other than a defendant organization, gained money or
property as a result of commission.
c. Whether the sentence to pay a fine will interfere with the defendant's capacity to
make restitution.
d. Whether a sentence to pay a fine will serve a valid rehabilitative purpose.
2. The court may allow the defendant to pay any fine imposed in installments. When a
defendant is sentenced to pay a fine, the court shall not impose at the same time an
alternative sentence to be served in the event that the fine is not paid.
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If the defendant does not pay the fine, or make any required partial payment, the court,
upon motion of the prosecuting attorney or on its own motion, may issue an order to
show cause why the defendant should not be imprisoned for nonpayment. Unless the
defendant shows that his default is excusable, the court may sentence him to the
following periods of imprisonment for failure to pay a fine:
a. If the defendant was convicted of a misdemeanor, to a period not to exceed thirty
days.
b. If the defendant was convicted of a felony, to a period not to exceed six months.
12.1-32-06. Incidents of probations.
Repealed by S.L. 1989, ch. 158, § 18.
12.1-32-06.1. Length and termination of probation - Additional probation for violation
of conditions - Penalty.
1. Except as provided in this section, the length of unsupervised probation imposed in
conjunction with a sentence to probation or a suspended execution or deferred
imposition of sentence may not extend for more than five years for a felony and two
years for a misdemeanor or infraction from the later of the date of:
a. The order imposing probation;
b. The defendant's release from incarceration; or
c. Termination of the defendant's parole.
2. Except as provided in this section, the length of supervised probation imposed in
conjunction with a sentence of probation or a suspended execution or deferred
imposition of sentence may not extend for more than five years for a felony offense
subject to section 12.1-32-09.1, a felony offense subject to section 12.1-32-02.1, which
involves the use of a firearm or dangerous weapon, a second or subsequent violation
of section 12.1-17-07.1, a second or subsequent violation of any domestic violence
protection order, a violation of chapter 12.1-41, or a violation of section 14-09-22; three
years for any other felony offense; two years for a class A misdemeanor; and three
hundred sixty days for a class B misdemeanor offense from the later of the date of:
a. The order imposing probation;
b. The defendant's release from incarceration; or
c. Termination of the defendant's parole.
3. If the defendant has pled or been found guilty of an offense for which the court
imposes a sentence of restitution or reparation for damages resulting from the
commission of the offense, the court may, following a restitution hearing pursuant to
section 12.1-32-08, impose additional periods of unsupervised probation not to exceed
five years for each additional period imposed.
4. If the defendant has pled or been found guilty of a felony sexual offense in violation of
chapter 12.1-20, the court shall impose at least five years but not more than ten years
of supervised probation to be served after sentencing or incarceration. If the defendant
has pled or been found guilty of a class AA felony sexual offense in violation of section
12.1-20-03 or 12.1-20-03.1, the court may impose lifetime supervised probation on the
defendant. If the defendant has pled or been found guilty of a misdemeanor sexual
offense in violation of chapter 12.1-20, the court may impose additional periods of
probation not to exceed two years for each additional period imposed. If the unserved
portion of the defendant's maximum period of incarceration is less than one year, a
violation of the probation imposed under this subsection is a class A misdemeanor.
5. If the defendant has pled or been found guilty of abandonment or nonsupport of
spouse or children, the period of probation may be continued for as long as
responsibility for support continues.
6. In felony and misdemeanor cases, in consequence of violation of probation conditions,
the court may impose additional probation if the defendant has not served the
maximum sentence of imprisonment available to the court at the time of initial
sentencing or deferment or the total time on probation authorized under this section.
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For class B and greater felony offenses, an offense subject to section
12.1-32-09.1, a felony offense subject to section 12.1-32-02.1, which involves the
use of a firearm or dangerous weapon, a second or subsequent violation of
section 12.1-17-07.1, a second or subsequent violation of any domestic violence
protection order, a violation of chapter 12.1-41, or a violation of section 14-09-22,
the total time on probation may not exceed ten years.
b. For all other felony offenses, the total time on probation may not exceed five
years.
c. For misdemeanor cases, the total time on probation may not exceed three years.
d. The court shall allow the defendant credit for a sentence of probation from the
date the defendant began probation until the date a petition to revoke probation
was filed with the court. If the defendant is on supervised probation, the
defendant is not entitled to credit for a sentence of probation for any period the
defendant has absconded from supervision. The total amount of credit a
defendant is entitled to for time spent on probation must be stated in the criminal
judgment or order of revocation of probation.
The court may terminate a period of probation and discharge the defendant at any
time earlier than that provided in subsection 1 if warranted by the conduct of the
defendant and the ends of justice.
Notwithstanding the fact that a sentence to probation subsequently can be modified or
revoked, a judgment that includes such a sentence constitutes a final judgment for all
other purposes.
12.1-32-07. Supervision of probationer - Conditions of probation - Revocation.
1. When the court imposes probation upon conviction for a felony offense subject to
section 12.1-32-09.1 or 12.1-32-02.1, a second or subsequent violation of section
12.1-17-07.1, a second or subsequent violation of any domestic violence protection
order, a violation of chapter 12.1-41, a violation of section 14-09-22, or a felony offense
under chapter 39-08, the court shall place the defendant under the supervision and
management of the department of corrections and rehabilitation. When the court
imposes probation upon conviction or order of disposition in all other felony cases, the
court may place the defendant under the supervision and management of the
department of corrections and rehabilitation. In class A misdemeanor cases, the court
may place the defendant under the supervision and management of the department of
corrections and rehabilitation or other responsible party. In all other cases, the court
may place the defendant under the supervision and management of a community
corrections program other than the department of corrections and rehabilitation. A
community corrections program means a program for the supervision of a defendant,
including monitoring and enforcement of terms and conditions of probation set by the
court.
2. The conditions of probation must be such as the court in its discretion deems
reasonably necessary to ensure that the defendant will lead a law-abiding life or to
assist the defendant to do so. The court shall provide as an explicit condition of every
probation that the defendant not commit another offense during the period for which
the probation remains subject to revocation. The court shall order supervision costs
and fees of not less than fifty-five dollars per month unless the court makes a specific
finding on record that the imposition of fees will result in an undue hardship. If the
offender has not paid the full amount of supervision fees and costs before completion
or termination of probation, the court may issue an order, after opportunity for hearing,
to determine the amount of supervision fees and costs that are unpaid. The order may
be filed, transcribed, and enforced by the department of corrections and rehabilitation
in the same manner as civil judgments rendered by a district court of this state.
3. The court shall provide as an explicit condition of every probation that the defendant
may not possess a firearm, destructive device, or other dangerous weapon while the
defendant is on probation. Except when the offense is a misdemeanor offense under
section 12.1-17-01, 12.1-17-01.1, 12.1-17-05, or 12.1-17-07.1, or chapter 14-07.1, the
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court may waive this condition of probation if the defendant has pled guilty to, or has
been found guilty of, a misdemeanor or infraction offense, the misdemeanor or
infraction is the defendant's first offense, and the court has made a specific finding on
the record before imposition of a sentence or a probation that there is good cause to
waive the condition. The court may not waive this condition of probation if the court
places the defendant under the supervision and management of the department of
corrections and rehabilitation. The court shall provide as an explicit condition of
probation that the defendant may not willfully defraud a urine test administered as a
condition of probation. Unless waived on the record by the court, the court shall also
provide as a condition of probation that the defendant undergo various agreed-to
community constraints and conditions as intermediate measures of the department of
corrections and rehabilitation to avoid revocation, which may include:
a. Community service;
b. Day reporting;
c. Curfew;
d. Home confinement;
e. House arrest;
f. Electronic monitoring;
g. Residential halfway house;
h. Intensive supervision program;
i. Up to five nonsuccessive periods of incarceration during any twelve-month
period, each of which may not exceed forty-eight consecutive hours; or
j. Participation in the twenty-four seven sobriety program.
When imposing a sentence to probation, probation in conjunction with imprisonment,
or probation in conjunction with suspended execution or deferred imposition of
sentence, the court may impose such conditions as it deems appropriate and may
include any one or more of the following:
a. Work faithfully at a suitable employment or faithfully pursue a course of study or
of career and technical education training that will equip the defendant for
suitable employment.
b. Undergo available medical or psychiatric treatment and remain in a specified
institution if required for that purpose.
c. Attend or reside in a facility established for the instruction, recreation, or
residence of persons on probation.
d. Support the defendant's dependents and meet other family responsibilities.
e. Make restitution or reparation to the victim of the defendant's conduct for the
damage or injury which was sustained or perform other reasonable assigned
work. When restitution, reparation, or assigned work is a condition of probation,
the court shall proceed as provided in subsection 1 or 2, as applicable, of section
12.1-32-08.
f. Pay a fine imposed after consideration of the provisions of section 12.1-32-05.
g. Refrain from excessive use of alcohol or any use of narcotics or of another
dangerous or abusable drug without a prescription.
h. Permit the probation officer to visit the defendant at reasonable times at the
defendant's home or elsewhere.
i. Remain within the jurisdiction of the court, unless granted permission to leave by
the court or the probation officer.
j. Answer all reasonable inquiries by the probation officer and promptly notify the
probation officer of any change in address or employment.
k. Report to a probation officer at reasonable times as directed by the court or the
probation officer.
l. Submit to a medical examination or other reasonable testing for the purpose of
determining the defendant's use of narcotics, marijuana, or other controlled
substance whenever required by a probation officer.
m. Refrain from associating with known users or traffickers in narcotics, marijuana,
or other controlled substances.
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Submit the defendant's person, place of residence, or vehicle to search and
seizure by a probation officer at any time of the day or night, with or without a
search warrant.
o. Serve a term of imprisonment of up to one-half of the maximum term authorized
for the offense of which the defendant was convicted.
p. Reimburse the costs and expenses determined necessary for the defendant's
adequate defense when counsel is appointed or provided at public expense for
the defendant. When reimbursement of indigent defense costs and expenses is
imposed as a condition of probation, the court shall proceed as provided in
subsection 4 of section 12.1-32-08.
q. Provide community service for the number of hours designated by the court.
r. Refrain from any subscription to, access to, or use of the internet.
When the court imposes a sentence to probation, probation in conjunction with
imprisonment, or probation in conjunction with suspended execution or deferred
imposition of sentence, the defendant must be given a certificate explicitly setting forth
the conditions on which the defendant is being released.
The court, upon notice to the probationer and with good cause, may modify or enlarge
the conditions of probation at any time prior to the expiration or termination of the
period for which the probation remains conditional. If the defendant violates a condition
of probation at any time before the expiration or termination of the period, the court
may continue the defendant on the existing probation, with or without modifying or
enlarging the conditions, or may revoke the probation and impose any other sentence
that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial
sentencing or deferment. In the case of suspended execution of sentence, the court
may revoke the probation and cause the defendant to suffer the penalty of the
sentence previously imposed upon the defendant.
The court may continue or modify probation conditions or revoke probation for a
violation of probation conditions occurring before the expiration or termination of the
period of probation notwithstanding that the order of the court is imposed after the
expiration or termination has occurred. The petition for revocation must be issued
within sixty days of the expiration or termination of probation.
Jurisdiction over a probationer may be transferred from the court that imposed the
sentence to another court of this state with the concurrence of both courts. Retransfers
of jurisdiction may also occur in the same manner. The court to which jurisdiction has
been transferred under this subsection may exercise all powers permissible under this
chapter over the defendant.
Notwithstanding any other provision of law, the court may authorize the defendant to
assist law enforcement officers in an investigation of a criminal offense upon the terms
and conditions as the court may require by written order. The court shall hold a hearing
in camera before issuing an order under this subsection. The order must be sealed
and is subject to inspection only upon order of the court.
12.1-32-07.1. Release, discharge, or termination of probation.
1. Whenever a person has been placed on probation and in the judgment of the court
that person has satisfactorily met the conditions of probation, the court shall cause to
be issued to the person a final discharge from further supervision.
2. Whenever a person has been placed on probation pursuant to subsection 4 of section
12.1-32-02, the court at any time, when the ends of justice will be served, and when
reformation of the probationer warrants, may terminate the period of probation and
discharge the person so held. A person convicted of gross sexual imposition under
subdivision a of subsection 1 of section 12.1-20-03 is not entitled to early termination
of probation pursuant to this section, unless the court finds after at least eight years of
supervised probation that further supervision would impose a manifest injustice. Every
defendant who has fulfilled the conditions of probation for the entire period, or who has
been discharged from probation prior to termination of the probation period, may at
any time be permitted in the discretion of the court to withdraw the defendant's plea of
Page No. 9
guilty. The court may in its discretion set aside the verdict of guilty. In either case, the
court may dismiss the information or indictment against the defendant. The court may,
upon its own motion or upon application by the defendant and before dismissing the
information or indictment, reduce to a misdemeanor a felony conviction for which the
plea of guilty has been withdrawn or set aside. The defendant must then be released
from all penalties and disabilities resulting from the offense or crime of which the
defendant has been convicted except as provided by sections 12.1-32-15 and
62.1-02-01.
12.1-32-07.2. Records and filing of papers.
1. Whenever the court orders that a person convicted of a felony is to be placed on
probation, the clerk of the court in which the order is entered immediately shall make
full copies of the judgment or order of the court with the conditions of probation and
shall certify the same to the director of parole and probation of the department of
corrections and rehabilitation. Upon the disposition of any criminal case, the clerk of
court shall transmit to the department of corrections and rehabilitation statistical data,
in accordance with rules adopted by the department, regarding all defendants whether
found guilty or discharged.
2. Whenever imposition of sentence is deferred and, pursuant to section 12.1-32-07.1,
the plea of guilty is withdrawn by the defendant or the verdict of guilty is set aside by
the court, the clerk of court shall file all papers, including the findings and final orders
in proceedings under section 12.1-32-07.1, and shall note the date of filing on the
papers. The records and papers are subject to examination by the clerk, a judge of the
court, the juvenile commissioner, probation officers, the defendant or defendant's
counsel, and the state's attorney. Others may examine the records and papers only
upon the written order of a judge of the court.
12.1-32-07.3. When probationer deemed escapee and fugitive from justice.
A probationer is considered an escapee and a fugitive from justice if the probationer leaves
the jurisdiction before the expiration of the probationary period without permission of the court or
the department of corrections and rehabilitation.
12.1-32-08. Hearing prior to ordering restitution, reparation, or reimbursement of
indigent defense costs and expenses - Conditions - Collection of restitution for
insufficient funds checks - Continuing appropriation.
1. Before imposing restitution or reparation as a sentence or condition of probation, the
court shall hold a hearing on the matter with notice to the prosecuting attorney and to
the defendant as to the nature and amount of restitution. The court, when sentencing a
person adjudged guilty of criminal activities that have resulted in pecuniary damages,
in addition to any other sentence the court may impose, shall order that the defendant
make restitution to the victim or other recipient as determined by the court, unless the
court states on the record, based upon the criteria in this subsection, the reason it
does not order restitution or orders only partial restitution. Restitution must include
payment to the owner of real property that is contaminated by the defendant in the
manufacturing of methamphetamine for the cost of removing the contamination and
returning the property to the property's condition before contamination and to any other
person that has incurred costs in decontaminating the property. In determining whether
to order restitution, the court shall take into account:
a. The reasonable damages sustained by the victim or victims of the criminal
offense, which damages are limited to those directly related to the criminal
offense and expenses actually incurred as a direct result of the defendant's
criminal action. This can include an amount equal to the cost of necessary and
related professional services and devices relating to physical, psychiatric, and
psychological care. The defendant may be required as part of the sentence
Page No. 10
2.
3.
4.
imposed by the court to pay the prescribed treatment costs for a victim of a
sexual offense as defined in chapters 12.1-20 and 12.1-27.2.
b. The ability of the defendant to restore the fruits of the criminal action or to pay
monetary reparations, or to otherwise take action to restore the victim's property.
c. The likelihood that attaching a condition relating to restitution or reparation will
serve a valid rehabilitational purpose in the case of the particular offender
considered.
The court shall fix the amount of restitution or reparation, which may not exceed an
amount the defendant can or will be able to pay, and shall fix the manner of
performance of any condition or conditions of probation established pursuant to this
subsection. The court shall order restitution be paid to the division of adult services for
any benefits the division has paid or may pay under chapter 54-23.4 unless the court,
on the record, directs otherwise. Any payments made pursuant to the order must be
deducted from damages awarded in a civil action arising from the same incident. An
order that a defendant make restitution or reparation as a sentence or condition of
probation may, unless the court directs otherwise, be filed, transcribed, and enforced
by the person entitled to the restitution or reparation or by the division of adult services
in the same manner as civil judgments rendered by the courts of this state may be
enforced.
When the restitution ordered by the court under subsection 1 is the result of a finding
that the defendant issued a check or draft without sufficient funds or without an
account, the court shall impose as costs the greater of the sum of ten dollars or an
amount equal to twenty-five percent of the amount of restitution ordered. The costs
imposed under this subsection, however, may not exceed one thousand dollars. The
state-employed clerks of district court shall remit the funds collected as costs under
this subsection to the state treasurer for deposit in the restitution collection assistance
fund. The funds deposited into the restitution collection assistance fund are
appropriated to the judicial branch on a continuing basis for the purpose of defraying
expenses incident to the collection of restitution, including operating expenses and the
compensation of additional necessary personnel. The state's attorneys and
county-employed clerks of district court shall remit the funds collected as costs under
this subsection to the county treasurer to be deposited in the county general fund.
The court may order the defendant to perform reasonable assigned work as a
condition of probation, which assigned work need not be related to the offense
charged, but must not be solely for the benefit of a private individual other than the
victim.
a. Under section 12.1-32-07, the court may order that the defendant reimburse
indigent defense costs and expenses as a condition of probation. Unless it finds
that there is no likelihood that the defendant is or will be able to pay attorney's
fees and expenses, the court, in its judgment of conviction, and in any order or
amended judgment following a revocation or other postjudgment proceeding,
shall notify the defendant, the defendant's probation officer, and the prosecuting
attorney of the presumed amount of costs and expenses to be reimbursed, as
determined by the commission on legal counsel for indigents, and of the right to a
hearing on the reimbursement amount. The reimbursement amount must include
an application fee imposed under section 29-07-01.1 if the fee has not been paid
before disposition of the case and the court has not waived payment of the fee. If
the defendant or prosecutor requests a hearing within thirty days of receiving
notice under this subdivision, the court shall schedule a hearing at which the
actual amount of attorney's fees and expenses must be shown. In determining
the amount and method of reimbursement, the court shall consider the financial
resources of the defendant and the nature of the burden that reimbursement of
costs and expenses will impose.
b. A defendant who is required to reimburse indigent defense costs and expenses
as a condition of probation and who is not willfully in default in that
reimbursement may at any time petition the court that imposed the condition to
Page No. 11
5.
waive reimbursement of all or any portion of the costs and expenses. If the court
is satisfied that reimbursement of the amount due will impose undue hardship on
the defendant or the defendant's immediate family, the court may waive
reimbursement of all or any portion of the amount due or modify the method of
payment.
c. If at any time the court finds that the defendant is able to reimburse costs and
expenses and has willfully failed to do so, the court may continue, modify, or
enlarge the conditions of probation or revoke probation as provided in
subsection 6 or 7, as applicable, of section 12.1-32-07.
If the court finds that the defendant is unable to pay a fine, supervision fee,
reimbursement for indigent defense costs and expenses, or restitution or reparations,
the court may order the defendant to perform reasonable assigned work in lieu of all or
part of a fine, a supervision fee, reimbursement for indigent defense costs and
expenses, or restitution or reparations. The defendant may not perform reasonable
assigned work in lieu of restitution or reparations unless the person entitled to
restitution or reparations has consented in writing or on the record.
12.1-32-09. Dangerous special offenders - Habitual offenders - Extended sentences Procedure.
1. A court may sentence a convicted offender to an extended sentence as a dangerous
special offender or a habitual offender in accordance with this section upon a finding of
any one or more of the following:
a. The convicted offender is a dangerous, mentally abnormal person whose conduct
has been characterized by persistent aggressive behavior and the behavior
makes the offender a serious danger to other persons.
b. The convicted offender is a professional criminal who has substantial income or
resources derived from criminal activity.
c. The convicted offender is a habitual offender. The court may not make such a
finding unless the offender is an adult and has previously been convicted in any
state or states or by the United States of two felonies of class C or above
committed at different times when the offender was an adult. For the purposes of
this subdivision, a felony conviction in another state or under the laws of the
United States is considered a felony of class C or above if it is punishable by a
maximum term of imprisonment of five years or more.
d. The offender was convicted of an offense that seriously endangered the life of
another person and the offender had previously been convicted of a similar
offense.
e. The offender is especially dangerous because the offender used a firearm,
dangerous weapon, or destructive device in the commission of the offense or
during the flight therefrom.
A conviction shown on direct or collateral review or at the hearing to be invalid or for
which the offender has been pardoned on the ground of innocence must be
disregarded for purposes of subdivision c. In support of findings under subdivision b, it
may be shown that the offender has had control of income or property not explained
as derived from a source other than criminal activity. For purposes of subdivision b, a
substantial source of income means a source of income which for any period of one
year or more exceeds the minimum wage, determined on the basis of a forty-hour
week and a fifty-week year, without reference to exceptions, under section 6(a)(1) of
the Fair Labor Standards Act of 1938, as amended, for an employee engaged in
commerce or in the production of goods for commerce, and which for the same period
exceeds fifty percent of the offender's declared adjusted gross income under chapter
57-38.
2. The extended sentence may be imposed in the following manner:
a. If the offense for which the offender is convicted is a class A felony, the court may
impose a sentence up to a maximum of life imprisonment.
Page No. 12
b.
3.
4.
5.
If the offense for which the offender is convicted is a class B felony, the court may
impose a sentence up to a maximum of imprisonment for twenty years.
c. If the offense for which the offender is convicted is a class C felony, the court may
impose a sentence up to a maximum of imprisonment for ten years.
Whenever an attorney charged with the prosecution of a defendant in a court of this
state for an alleged felony committed when the defendant was over the age of
eighteen years has reason to believe that the defendant is a dangerous special
offender or a habitual offender, the attorney, at a reasonable time before trial or
acceptance by the court of a plea of guilty, may sign and file with the court, and may
amend, a notice specifying that the defendant is a dangerous special offender or a
habitual offender who upon conviction for the felony is subject to the imposition of a
sentence under subsection 2, and setting out with particularity the reasons why the
attorney believes the defendant to be a dangerous special offender or a habitual
offender. In no case may the fact that the prosecuting attorney is seeking sentencing
of the defendant as a dangerous special offender or a habitual offender be disclosed to
the jury before a verdict. If the court finds that the filing of the notice as a public record
may prejudice fair consideration of a pending criminal matter, the court may order the
notice sealed and the notice is not subject to subpoena or public inspection during the
pendency of the criminal matter, except on order of the court, but is subject to
inspection by the defendant alleged to be a dangerous special offender or a habitual
offender and the offender's counsel.
Upon any plea of guilty, or verdict or finding of guilt of the defendant of such felony, a
hearing must be held, before sentence is imposed, in accordance with this subsection
as follows:
a. By a jury, or the court if a jury is waived by the defendant, if the notice alleges that
the defendant is a dangerous special offender under subdivision a, b, d, or e of
subsection 1. The jury, or the court if a jury is waived, must find that the defendant
is a dangerous special offender under one or more of these subdivisions by proof
beyond a reasonable doubt. However, in the case of a notice alleging only
subdivision e of subsection 1, the trial jury, or the trial court if a jury is waived,
may make a special finding of proof of this subdivision without an additional
hearing subsequent to a verdict or finding of guilt.
b. By the court if the notice alleges that the defendant is a habitual offender under
subdivision c of subsection 1. The court must find that the defendant is a habitual
offender by a preponderance of the evidence.
Except in the most extraordinary cases, the court shall obtain a presentence report
and may receive a diagnostic testing report under subsection 5 of section 12.1-32-02
before holding a hearing under this subsection. The court shall fix a time for the
hearing and notice thereof must be given to the defendant and the prosecution at least
five days prior thereto. The court shall permit the prosecution and counsel for the
defendant, or the defendant if the defendant is not represented by counsel, to inspect
the presentence report sufficiently before the hearing as to afford a reasonable
opportunity for verification. In extraordinary cases, the court may withhold material not
relevant to a proper sentence, diagnostic opinion that might seriously disrupt a
program of rehabilitation, any source of information obtained on a promise of
confidentiality, and material previously disclosed in open court. A court withholding all
or part of a presentence report shall inform the parties of its action and place in the
record the reasons therefor. The court may require parties inspecting all or part of a
presentence report to give notice of any part thereof intended to be controverted. In
connection with the hearing, the defendant is entitled to compulsory process and
cross-examination of such witnesses as appear at the hearing. A duly authenticated
copy of a former judgment or commitment is prima facie evidence of such former
judgment or commitment. If the jury or the court finds, after hearing, one or more of the
grounds set forth in subsection 1, that the defendant is a dangerous special offender
or a habitual offender, the court shall sentence the defendant to imprisonment for an
appropriate term within the limits specified in subsection 2.
Page No. 13
12.1-32-09.1. Sentencing of violent offenders.
1. Except as provided under section 12-48.1-02 and pursuant to rules adopted by the
department of corrections and rehabilitation, an offender who is convicted of a crime in
violation of section 12.1-16-01, 12.1-16-02, subsection 2 of section 12.1-17-02, section
12.1-18-01, subdivision a of subsection 1 or subdivision b of subsection 2 of section
12.1-20-03, section 12.1-22-01, subdivision b of subsection 2 of section 12.1-22-02, or
an attempt to commit the offenses, and who receives a sentence of imprisonment is
not eligible for release from confinement on any basis until eighty-five percent of the
sentence imposed by the court has been served or the sentence is commuted.
2. In the case of an offender who is sentenced to a term of life imprisonment with
opportunity for parole under subsection 1 of section 12.1-32-01, the term "sentence
imposed" means the remaining life expectancy of the offender on the date of
sentencing. The remaining life expectancy of the offender must be calculated on the
date of sentencing, computed by reference to a recognized mortality table as
established by rule by the supreme court.
3. Notwithstanding this section, an offender sentenced under subsection 1 of section
12.1-32-01 may not be eligible for parole until the requirements of that subsection
have been met.
12.1-32-10. Mandatory parole components.
Repealed by S.L. 1989, ch. 51, § 5.
12.1-32-11. Merger of sentences - Sentencing for multiple offenses.
1. Unless the court otherwise orders, when a person serving a term of commitment
imposed by a court of this state is committed for another offense or offenses, the
shorter term or the shorter remaining term shall be merged in the other term. When a
person on probation or parole for an offense committed in this state is sentenced for
another offense or offenses, the period still to be served on probation or parole shall
be merged in any new sentence of commitment or probation. A court merging
sentences under this subsection shall forthwith furnish each of the other courts
previously involved and the penal facility in which the defendant is confined under
sentence with authenticated copies of its sentence, which shall cite the sentences
being merged. A court which imposed a sentence which is merged pursuant to this
subsection shall modify such sentence in accordance with the effect of the merger.
2. Repealed by S.L. 1977, ch. 129, § 1.
3. When sentenced only for misdemeanors, a defendant may not be consecutively
sentenced to more than one year, except that a defendant being sentenced for two or
more class A misdemeanors may be subject to an aggregate maximum not exceeding
that authorized by section 12.1-32-01 for a class C felony if each class A misdemeanor
was committed as part of a different course of conduct or each involved a substantially
different criminal objective.
12.1-32-12. Penalties, sentences, and parole for offenses unclassified and in other
titles.
Where an offense is defined by a statute or by the constitution without specification of its
classification pursuant to section 12.1-32-01, the offense is punishable as provided in the
statute or constitutional provision defining it, or:
1. If the offense is declared to be a felony, without further specification of punishment, it is
punishable as if it were a class C felony.
2. If the offense is declared to be a misdemeanor, without further specification of
punishment, it is punishable as if it were a class A misdemeanor.
The sentencing alternatives available under section 12.1-32-02 are available to a court
sentencing an offender for commission of an offense defined by a statute outside this title.
Page No. 14
12.1-32-13. Minor convicted of felony - Sentencing.
Whenever a minor is convicted of a felony, the sentencing court may commit the person to
the North Dakota youth correctional center as provided in this title. Provided, however, that a
minor over the age of sixteen who is convicted of a felony may be sentenced to a penal
institution or detention facility.
12.1-32-14. Restoration of property or other work to be required of certain offenders.
Other provisions of this chapter notwithstanding, whenever a person convicted of criminal
mischief is placed on probation pursuant to section 12.1-32-02 or 12.1-32-07, the court shall
include as a condition of that probation the requirement that the person perform restoration or
other assigned work as specified in subdivision e of subsection 4 of section 12.1-32-07.
12.1-32-15. Offenders against children and sexual offenders - Sexually violent
predators - Registration requirement - Penalty.
1. As used in this section:
a. "A crime against a child" means a violation of chapter 12.1-16, section
12.1-17-01.1 if the victim is under the age of twelve, 12.1-17-02, 12.1-17-04,
subdivision a of subsection 6 of section 12.1-17-07.1, section 12.1-18-01,
12.1-18-02, 12.1-18-05, chapter 12.1-29, or section 14-09-22, subsection 3 of
section 12.1-41-02, subsection 3 of section 12.1-41-03, or an equivalent offense
from another court in the United States, a tribal court, or court of another country,
in which the victim is a minor or is otherwise of the age required for the act to be
a crime or an attempt or conspiracy to commit these offenses.
b. "Department" means the department of corrections and rehabilitation.
c. "Homeless" means an individual who is physically present in this state, but is
living in a park, under a bridge, on the streets, in a vehicle or camper, or is
otherwise without a traditional dwelling, and also one who resides in this state but
does not maintain a permanent address. The term does not include individuals
who are temporarily domiciled or individuals residing in public or private shelters
that provide temporary living accommodations.
d. "Mental abnormality" means a congenital or acquired condition of an individual
that affects the emotional or volitional capacity of the individual in a manner that
predisposes that individual to the commission of criminal sexual acts to a degree
that makes the individual a menace to the health and safety of other individuals.
e. "Predatory" means an act directed at a stranger or at an individual with whom a
relationship has been established or promoted for the primary purpose of
victimization.
f. "Sexual offender" means a person who has pled guilty to or been found guilty,
including juvenile delinquent adjudications, of a violation of section 12.1-20-03,
12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-05.1, 12.1-20-06, 12.1-20-06.1,
12.1-20-07 except for subdivision a, 12.1-20-11, 12.1-20-12.1, or 12.1-20-12.2,
chapter 12.1-27.2, or subsection 2 of section 12.1-22-03.1, subdivision b of
subsection 1 of section 12.1-41-02, section 12.1-41-04, 12.1-41-05, or
12.1-41-06, or an equivalent offense from another court in the United States, a
tribal court, or court of another country, or an attempt or conspiracy to commit
these offenses.
g. "Sexually dangerous individual" means an individual who meets the definition
specified in section 25-03.3-01.
h. "Temporarily domiciled" means staying or being physically present in this state for
more than thirty days in a calendar year or at a location for longer than ten
consecutive days, attending school for longer than ten days, or maintaining
employment in the jurisdiction for longer than ten days, regardless of the state of
the residence.
2. The court shall impose, in addition to any penalty provided by law, a requirement that
the individual register, within three days of coming into a county in which the individual
resides, is homeless, or within the period identified in this section that the individual
Page No. 15
3.
4.
becomes temporarily domiciled. The individual must register with the chief of police of
the city or the sheriff of the county if the individual resides, attends school, or is
employed in an area other than a city. A homeless individual shall register every three
days with the sheriff or chief of police of the jurisdiction in which the individual is
physically present. The court shall require an individual to register by stating this
requirement on the court records, if that individual:
a. Has pled guilty or nolo contendere to, or been found guilty as a felonious sexual
offender or an attempted felonious sexual offender, including juvenile delinquent
adjudications of equivalent offenses unless the offense is listed in subdivision c.
b. Has pled guilty or nolo contendere to, or been found guilty as a sexual offender
for, a misdemeanor or attempted misdemeanor. The court may deviate from
requiring an individual to register if the court first finds the individual is no more
than three years older than the victim if the victim is a minor, the individual has
not previously been convicted as a sexual offender or of a crime against a child,
and the individual did not exhibit mental abnormality or predatory conduct in the
commission of the offense.
c. Is a juvenile found delinquent under subdivision d of subsection 1 of section
12.1-20-03, subdivision a of subsection 2 of section 12.1-20-03, or as a sexual
offender for a misdemeanor. The court may deviate from requiring the juvenile to
register if the court first finds the juvenile has not previously been convicted as a
sexual offender or for a crime against a child, and the juvenile did not exhibit
mental abnormality or predatory conduct in the commission of the offense.
d. Has pled guilty or nolo contendere to, or been found guilty of, a crime against a
child or an attempted crime against a child, including juvenile delinquent
adjudications of equivalent offenses. Except if the offense is described in section
12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent
of the victim, the court may deviate from requiring an individual to register if the
court first finds the individual has not previously been convicted as a sexual
offender or for a crime against a child, and the individual did not exhibit mental
abnormality or predatory conduct in the commission of the offense.
e. Has pled guilty or nolo contendere, been found guilty, or been adjudicated
delinquent of any crime against another individual which is not otherwise
specified in this section if the court determines that registration is warranted by
the nature of the crime and therefore orders registration for the individual. If the
court orders an individual to register as an offender under this section, the
individual shall comply with all of the registration requirements in this chapter.
If a court has not ordered an individual to register in this state, an individual who
resides, is homeless, or is temporarily domiciled in this state shall register if the
individual:
a. Is incarcerated or is on probation or parole after July 31, 1995, for a crime against
a child described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 if the
individual was not the parent of the victim, or as a sexual offender;
b. Has pled guilty or nolo contendere to, or been adjudicated for or found guilty of,
an offense in a court of this state for which registration is mandatory under this
section or an offense from another court in the United States, a tribal court, or
court of another country equivalent to those offenses set forth in this section; or
c. Has pled guilty or nolo contendere to, or has been found guilty of, a crime against
a child or as a sexual offender for which registration is mandatory under this
section if the conviction occurred after July 31, 1985.
In its consideration of mental abnormality or predatory conduct, the court shall
consider the age of the offender, the age of the victim, the difference in ages of the
victim and offender, the circumstances and motive of the crime, the relationship of the
victim and offender, and the mental state of the offender. The court may order an
offender to be evaluated by a qualified counselor, psychologist, or physician before
sentencing. Except as provided under subdivision e of subsection 2, the court shall
Page No. 16
5.
6.
7.
state on the record in open court its affirmative finding for not requiring an offender to
register.
When an individual is required to register under this section, the official in charge of a
facility or institution where the individual required to register is confined, or the
department, shall, before the discharge, parole, or release of that individual, inform the
individual of the duty to register pursuant to this section. The official or the department
shall require the individual to read and sign a form as required by the attorney general,
stating that the duty of the individual to register has been explained to that individual.
The official in charge of the place of confinement, or the department, shall obtain the
address where the individual expects to reside, attend school, or work upon discharge,
parole, or release and shall report the address to the attorney general. The official in
charge of the place of confinement, or the department, shall give three copies of the
form to the individual and shall send three copies to the attorney general no later than
forty-five days before the scheduled release of that individual. The attorney general
shall forward one copy to the law enforcement agency having jurisdiction where the
individual expects to reside, attend school, or work upon discharge, parole, or release,
one copy to the prosecutor who prosecuted the individual, and one copy to the court in
which the individual was prosecuted. All forms must be transmitted and received by
the law enforcement agency, prosecutor, and court thirty days before the discharge,
parole, or release of the individual.
An individual who is required to register pursuant to this section who is released on
probation or discharged upon payment of a fine must, before the release or discharge,
be informed of the duty to register under this section by the court in which that
individual is convicted. The court shall require the individual to read and sign a form as
required by the attorney general, stating that the duty of the individual to register under
this section has been explained to that individual. The court shall obtain the address
where the individual expects to reside, attend school, or work upon release or
discharge and shall report the address to the attorney general within three days. The
court shall give one copy of the form to the individual and shall send two copies to the
attorney general. The attorney general shall forward one copy to the appropriate law
enforcement agency having jurisdiction where the individual expects to reside, attend
school, or work upon discharge, parole, or release.
Registration consists of a written statement signed by the individual, giving the
information required by the attorney general, and the biometric data and photograph of
the individual. An individual who is not required to provide a sample of blood and other
body fluids under section 31-13-03 or by the individual's state or court of conviction or
adjudication shall submit a sample of blood and other body fluids for inclusion in a
centralized database of DNA identification records under section 31-13-05. The
collection, submission, testing and analysis of, and records produced from, samples of
blood and other body fluids, are subject to chapter 31-13. Evidence of the DNA profile
comparison is admissible in accordance with section 31-13-02. A report of the DNA
analysis certified by the state crime laboratory is admissible in accordance with section
31-13-05. A district court shall order an individual who refuses to submit a sample of
blood or other body fluids for registration purposes to show cause at a specified time
and place why the individual should not be required to submit the sample required
under this subsection. Within three days after registration, the registering law
enforcement agency shall forward the statement, biometric data, and photograph to
the attorney general and shall submit the sample of the individual's blood and body
fluids to the state crime laboratory. If an individual required to register under this
section has a change in vehicle or computer online identity, the individual shall inform
in writing, within three days after the change, the law enforcement agency with which
that individual last registered of the individual's new vehicle or computer online identity.
If an individual required to register pursuant to this section has a change in name,
school, or residence or employment address, that individual shall inform in writing, at
least ten days before the change, the law enforcement agency with which that
individual last registered of the individual's new name, school, residence address, or
Page No. 17
8.
9.
10.
11.
employment address. A change in school or employment address includes the
termination of school or employment for which an individual required to register under
this section shall inform in writing within five days of the termination the law
enforcement agency with which the individual last registered. The law enforcement
agency, within three days after receipt of the information, shall forward it to the
attorney general. The attorney general shall forward the appropriate registration data
to the law enforcement agency having local jurisdiction of the new place of residence,
school, or employment. Upon a change of address, the individual required to register
shall also register within three days at the law enforcement agency having local
jurisdiction of the new place of residence, school, or employment. The individual
registering under this section shall periodically confirm the information required under
this subsection in a manner and at an interval determined by the attorney general. A
law enforcement agency that has previously registered an offender may omit the
biometric data portion of the registration if that agency has a set of biometric data on
file for that individual and is personally familiar with and can visually identify the
offender. These provisions also apply in any other state that requires registration.
An individual required to register under this section shall comply with the registration
requirement for the longer of the following periods:
a. A period of fifteen years after the date of sentence or order deferring or
suspending sentence upon a plea or finding of guilt or after release from
incarceration, whichever is later;
b. A period of twenty-five years after the date of sentence or order deferring or
suspending sentence upon a plea or finding of guilt or after release from
incarceration, whichever is later, if the offender is assigned a moderate risk by the
attorney general as provided in subsection 12; or
c. For the life of the individual, if that individual:
(1) On two or more occasions has pled guilty or nolo contendere to, or been
found guilty of a crime against a child or as a sexual offender. If all qualifying
offenses are misdemeanors, this lifetime provision does not apply unless a
qualifying offense was committed after August 1, 1999;
(2) Pleads guilty or nolo contendere to, or is found guilty of, an offense
committed after August 1, 1999, which is described in subdivision a of
subsection 1 of section 12.1-20-03, section 12.1-20-03.1, or subdivision d of
subsection 1 of section 12.1-20-03 if the person is an adult and the victim is
under age twelve, or section 12.1-18-01 if that individual is an adult other
than a parent of the victim, or an equivalent offense from another court in
the United States, a tribal court, or court of another country; or
(3) Is assigned a high risk by the attorney general as provided in subsection 12.
An individual required to register under this section who violates this section is guilty of
a class C felony. The failure of a homeless individual to register as required in
subsections 2 and 3 is prima facie evidence of a violation of this section. The clerk of
court shall forward all warrants issued for a violation of this section to the county
sheriff, who shall enter all such warrants into the national crime information center
wanted person file. A court may not relieve an individual, other than a juvenile, who
violates this section from serving a term of at least ninety days in jail and completing
probation of one year.
When an individual is released on parole or probation and is required to register
pursuant to this section, but fails to do so within the time prescribed, the court shall
order the probation, or the parole board shall order the parole, of the individual
revoked.
If an individual required to register pursuant to this section is temporarily sent outside
the facility or institution where that individual is confined under conviction or sentence,
the local law enforcement agency having jurisdiction over the place where that
individual is being sent must be notified within a reasonable time period before that
individual is released from the facility or institution. This subsection does not apply to
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any individual temporarily released under guard from the facility or institution in which
that individual is confined.
The attorney general, with the assistance of the department and the juvenile courts,
shall develop guidelines for the risk assessment of sexual offenders who are required
to register, with a low-risk, moderate-risk, or high-risk level being assigned to each
offender as follows:
a. The department shall conduct a risk assessment of sexual offenders who are
incarcerated in institutions under the control of the department and sexual
offenders who are on supervised probation. The department, in a timely manner,
shall provide the attorney general any information, including the offender's level of
risk and supporting documentation, concerning individuals required to be
registered under this section who are about to be released or placed into the
community.
b. The attorney general shall conduct a risk assessment of sexual offenders who
are not under the custody or supervision of the department. The attorney general
may adopt a law enforcement agency's previous assignment of risk level for an
individual if the assessment was conducted in a manner substantially similar to
the guidelines developed under this subsection.
c. The juvenile courts or the agency having legal custody of a juvenile shall conduct
a risk assessment of juvenile sexual offenders who are required to register under
this section. The juvenile courts or the agency having legal custody of a juvenile
shall provide the attorney general any information, including the offender's level of
risk and supporting documentation, concerning juveniles required to register and
who are about to be released or placed into the community.
d. The attorney general shall notify the offender of the risk level assigned to that
offender. An offender may request a review of that determination with the attorney
general's sexual offender risk assessment committee and may present any
information that the offender believes may lower the assigned risk level.
Relevant and necessary conviction and registration information must be disclosed to
the public by a law enforcement agency if the individual is a moderate or high risk and
the agency determines that disclosure of the conviction and registration information is
necessary for public protection. The attorney general shall develop guidelines for
public disclosure of offender registration information. Public disclosure may include
internet access if the offender:
a. Is required to register for a lifetime under subsection 8;
b. Has been determined to be a high risk to the public by the department, the
attorney general, or the courts, according to guidelines developed by those
agencies; or
c. Has been determined to be a high risk to the public by an agency of another state
or the federal government.
If the offender has been determined to be a moderate risk, public disclosure must
include, at a minimum, notification of the offense to the victim registered under chapter
12.1-34 and to any agency, civic organization, or group of persons who have
characteristics similar to those of a victim of the offender. Upon request, law
enforcement agencies may release conviction and registration information regarding
low-risk, moderate-risk, or high-risk offenders.
A state officer, law enforcement agency, or public school district or governing body of a
nonpublic school or any appointee, officer, or employee of those entities is not subject
to civil or criminal liability for making risk determinations, allowing a sexual offender to
attend a school function under section 12.1-20-25, or for disclosing or for failing to
disclose information as permitted by this section.
If a juvenile is adjudicated delinquent and required or ordered to register as a sexual
offender or as an offender against a child under this section, the juvenile shall comply
with the registration requirements in this section. Notwithstanding any other provision
of law, a law enforcement agency shall register a juvenile offender in the same manner
as adult offenders and may release any relevant and necessary information on file to
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other law enforcement agencies, the department of human services, or the public if
disclosure is necessary to protect public health or safety. The law enforcement agency
shall release any relevant and necessary information on file to the superintendent or
principal of the school the juvenile attends. The school administration shall notify
others in similar positions if the juvenile transfers to another learning institution in or
outside the state.
If an individual has been required to register as a sexual offender or an offender
against a child under section 12.1-32-15 or 27-20-52.1 before August 1, 1999, the
individual may petition the court to be removed from the offender list if registration is
no longer mandatory for that individual. In considering the petition, the court shall
comply with the requirements of this section.
A sexual offender who is currently assigned a moderate or high-risk level by the
attorney general may not use a state park of this state as a residence or residential
address to comply with the registration requirements of this section. Before arriving at
a state park for overnight lodging or camping, a sexual offender who is assigned a
moderate or high-risk level by the attorney general shall notify a parks and recreation
department law enforcement officer at the state park where the sexual offender will be
staying.
12.1-32-16. Restitution to be required of certain offenders - Penalty.
Notwithstanding any other provision in this chapter, whenever a person whose license has
been suspended for nonpayment of child support under section 50-09-08.6 is convicted of
engaging in activity for which the license was required, the court shall require as a condition of
the sentence that the person pay restitution in the amount of two hundred fifty dollars, or a
higher amount set by the court, as specified in subdivision e of subsection 4 of section
12.1-32-07. Any restitution ordered under this section must be paid to the state disbursement
unit for distribution under section 14-09-25.
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